PDD254

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00031151 (CA-00041519-002)

BACKGROUND:

The worker appealed the Decision of the Adjudication Officer to the Labour Court on 25 September 2023. A Labour Cour hearing took place on 11 March 2025. The following is the decision of the Court.

DECISION:

This is an appeal by Mr Reardon (the Complainant) against Decision ADJ-00031151 CA-00041519-002 of an Adjudication Officer under the Protected Disclosures Act, 1991 (the Act) against his employer the Minister for Agriculture Food and the Marine (the Respondent).  The Adjudication Officer held that the complaint of penalisation was not well founded. 

1 Background

The Complainant is a Veterinary Inspector (VI) and commenced permanent employment with the Respondent on 15 February 1999. The Complainant was assigned to the Department’s Investigation Division which focuses on non-compliance with relevant legislation which poses reputational risk to both the Industry and the State. On 2 August 2017 the Complainant made a protected disclosure by way of letter to the Minister for Agriculture, Food and Marine. Ms Hillery BL counsel for the Respondent confirmed to the Court that they were not disputing that the Complainant made this protected disclosure. It is the Complainant’s case that he was penalised for making the protected disclosure. The Respondents disputes that he was penalised. The Complainant lodged his complaint with the WRC on 11 December 2020. The reckonable period for the purpose of the Act is 12 June 2020 to 11 December 2020.

2 Summary of Complainant’s submission.

Ms O’Flynn BL for the Complainant submitted that having made a protected disclosure on 2 August 2017 the Complainant was informed the following day 3 August 2017 that he was to be transferred and asked if he would be interested in a move to the Department’s Wildlife Unit. The Complainant turned down the offer of a transfer by email of 4 August 2017. Ms O’Flynn BL stated that it was important to note that the Department’s mobility policy did not apply to the Complainant’s grade. There was no further contact in respect of this transfer until 15 June 2020 when the Complainant received a letter advising that he was to be transferred.  The letter stated “ In accordance with the outcome of a review of Investigation Division and in line with Department Mobility Policy, you have been identified as one of the longest serving officers in that division.” It went on to say that he was being reassigned from his current role to duties in Amt South with effect from 29 June 2020, and advised who he should contact regarding assignment of duties and other practical arrangements.

By email of 19 June 2020 the Complainant’s Trade Union wrote to the Respondent noting that this was the first non-voluntary move under the mobility policy and querying who had made the decision. It also noted two of his colleagues were also being moved and the manner in which the transfer was communicated was not acceptable given his long service in the unit. The Respondent replied on 26 June 2020 stating the decision to transfer the Complainant was made solely on foot of the findings in the review of the Investigations Division.  This was different to what was stated in the letter of 15 June 2020 which invoked the departments mobility policy.  No other VI in any other division of the department has been compulsorily moved under the mobility policy.

It is the Complainants position that three years and two months after he made a protected disclosure, he was informed that he was being transferred out of the Investigations Division to the Wildlife Division and two weeks later that decision was implemented. This transfer resulted in a diminution of the Complainant’s duties which is a detriment and constitutes a penalisation.  The mobility policy does not apply to the Complainant’s grade, yet the Respondent tried to invoke it in this case. Ms O’ Flynn BL submitted that the Respondent relying on length of service to redeploy the Complainant from one unit to another was penalisation.  Staff were not informed in advance that there would be transfers based on length of service and the utilisation of this criteria directly impacted on the Complainant. Ms O’ Flynn BL submitted that the length of time between the Protected Disclosure and the transfer is irrelevant and does not minimise or water down the penalisation. It is the Complainant’s submission that his Protected Disclosure was the operative reason for the transfer.

3 Summary of Respondent’s submission

Ms Hillery BL on behalf of the Respondent confirmed that they were not disputing the fact that the Complainant made a protected disclosure, however the disclosure is not linked in any way to the transfer.  The Special Investigations Unit which the Complainant was initially assigned to in 1999 was restructured as a formal division called the Investigations Division following a review carried out in May 2014. One of the recommendations in that report was

“In accordance with DAFM mobility policy and in support of staff development and career development, staff in Investigations Division will be rotated on roughly 5 year cycles of assignment, however, recognising that cases may take years to be finalised and to minimise any disruption to the effectiveness of the Division this will be carried out in a planned and incremental way, particularly using the model of part-time associates of the Division and particularly for those subsequently re-assigned to other divisions or back to their original line divisions having served the appropriate time in the investigation unit.”

In 2018 a further review of the Department’s Investigations and Prosecutions procedures and structures was carried out to identify how the Departments Investigation Division could best support the strategic objectives of the Department and the wider agri-food sector. A steering group was set up to over see the implementation of the recommendations from the review. During the period when implementation was being rolled out this was a standing item on the agenda for meetings of the Division which the Complainant would have attended. The minutes of the steering Group on 27 May 2020 which was the last meeting before the Complainant was reassigned show that there were only two outstanding recommendations at that stage one of which was to give effect to recommendation 20 of the review, which stated,

“In line with the broader civil service and departmental HR policies, mobility will apply to the staff of the division, albeit on a more lengthy rotation than standard, given the specialised nature of the work. An annual workforce plan for the division will be formulated by the head of division in collaboration with the personnel officer to manage the staffing arrangements.”

All staff of the Division would have been aware of the ongoing reviews in 2014 and 2018 and following the meeting on 27 May 2020 engagement took place with Human Resources to identify the longest serving staff members in the division.  The Complainant was one of three people who were identified as having significant service in the Division.  The Complainants line manager made efforts to speak to him directly to notify him of the proposed reassignment, however, he was unable to contact him.  On 15 June 2020 the Complainant was notified of his reassignment to Area Management Team South Division with effect from 29 June 2020. The letter advised him to report to his new manager in advance to make arrangement for his commencement. The letter confirmed that his headquarters would remain in the Kilkenny local office.  The decision that staff in this Division would be rotated was first made in 2014 a number of years before the Complainant made his Protected Disclosure. The implementation of the policy resulted in three people being moved.  Only one of those people the Complainant had made a Protected Disclosure. It is the submission of the Respondent that there is no link between the Complainant’s transfer and his Protected Disclosure a number of years earlier.  

4 Summary of Complainant’s witness evidence

The first witness was the Complainant himself.  It was his evidence that the day after he made his protected disclosure on 2 August 2017 he was in Back Weston, and was informed that he was being offered a transfer to the Wildlife unit which he declined.  He stated that he was told that if he did not accept a transfer the Secretary General of the Department would use the mobility policy to move him. He felt it was as a result of his Protected Disclosure.

 In his evidence he stated that there were voluntary transfer arrangements in place for his grade through expressions of interest and that he felt the offer of a transfer was highly irregular and contrary to the agreed process. The Complainant confirmed that he found out about the transfer when he received the letter dated 15 June 2020. He stated that he was very surprised to receive the letter as at the time he had eight to ten active investigations going on. He stated that he cannot understand how moving him out of the Division was career progression.

The Complainant stated that his career has come to a halt after the move. He confirmed that he first heard around September 2017 that there was going to be a review of the Division, and that mobility was going to apply. It was his belief that the review was going to be used to target him and his two colleagues.  It was the Complainant’s evidence that there was no discussion with him prior to receiving the letter of 15 June 2020 about that transfer. He also confirmed that he was never asked to confirm his service.

The Complainant stated that he was re-assigned on 29 June 2020. He was told to report to Kilkenny and went to the same desk he always used. Mr Lyons his line manager in the new unit was generally based in Waterford. It was his evidence that it took a week and a half to assign duties to him and arrange for him to accompany other members of staff. He believed that they were not expecting him and had no work for him which reinforced his belief that the transfer was linked to his Protected Disclosure. Mr Lyons told him that he had not been looking for more staff. It was the Complainant’s evidence that he believed the post he vacated was filled about one month later.

In respect of the detriment, he stated he was only one of two Veterinary Inspectors that were ever compulsorily transferred, his previous work was very interesting he dealt with a variety of people and had to keep up to date with legislation. He confirmed that his location and rate of pay remained the same. It was his evidence that the transfer meant a lost opportunity to use his skills. The Complainant stated that on 6 July 2020 he had confirmed that he would participate in the duties that had been assigned to him he attended the office and learnt the computer system they used and went out on blood testing with another member of staff.

Under cross examination by Ms Hillery BL put it to the Complainant that his original letter of offer, advised that his duties would be as assigned from time to time and appropriate to his position in line with Civil service regulations. The Complainant accepted that he is a civil servant and subject to civil service regulation.  It was put to him that rotating staff out of the Division was first flagged in 2014 three years before his Protected Disclosure. The Complainant accepted that but stated that he did not think the rotation would apply to him. He accepted that mobility was again flagged in the 2018 review and that that report was initiated before his Protected Disclosure although it concluded after it.

The Complainant accepted that the Investigations Division had monthly meetings and that the agenda and minutes were circulated and that the review was on the agenda. He also confirmed that there were new staff coming into the area on three-to-five-year contracts. It was his evidence that he assumed he would have a mentoring role in respect of the new staff. He confirmed that he did some training with them, but he did not believe they were fully trained when he was moved. The Complainant accepted that at December 2018 meeting the review documents containing the recommendations were circulated and that mobility of staff was addressed in those documents.

It was put to him that Mr Drea will say that when he arrived at the unit there was five people with long service one person moved and one retired, the remaining three were transferred. It was the Complainants evidence that he believed Mr Drea was told by a third party to pull the trigger on the transfers. He accepted that Mr Drea did not know about his protected disclosure. He also accepted that the three people transferred had the longest service and that the rest of the staff had less than five years’ service. 

In respect of his transfer the Complainant confirmed he only made contact with the head of his new unit after he started, as he was fighting the transfer up to that point. It was put to the Complainant that Mr Lyons will dispute that the duties in the new unit were lower-level duties and will state that there was plenty of work and he was delighted that the Complainant was coming to work for him. Mr Lyons will also say that he made numerous efforts to engage with the Complainant, but the complainant indicated he was unavailable for the new work as he was finishing out his investigations work. The Complainant confirmed that during the relevant period he attended the office on a number of occasions and learnt how to use different systems and do blood testing.

 The second witness for the Complainant was Mr John Higgins from the Veterinary Officers Association (VOA). Mr Higgins confirmed that he is a former president of the VOA. When asked what he knew about the transfer system for veterinary staff. It was his evidence that the Veterinary transfer agreement is to facilitate staff that want to move back to a particular area. The transfers arise when vacancies occur and are offered on a seniority basis. Certain areas are excluded from the list and its in respect of moving geographical areas not sections within the same location.  It was his evidence that he had never heard of anybody being compulsorily transferred.  Under cross examination he confirmed that the transfer system does not apply to mobility within the same geographical area or an area of work. He confirmed that Management has the right to manage their staff.

 5 Summary of Respondent’s witness evidence.

The first witness for the respondent was Mr Tim Drea who was Head of Investigation unit from 2018 to 2023. It was his evidence that when he was assigned to the role, he was told to implement the recommendations of the review.  Part of his role was to update the steering group on the progress in respect of implementation of the recommendations.  It was his evidence that the recommendations were known to staff.  In 2019 he started looking at a process of staffing up the unit through inviting expressions of interest looking for staff for the four different streams that existed in Investigations unit one of which was veterinary staff. By the end of June 2020 all investigation staff that had more than five years had either been moved or had retired.

At the steering group meeting on 27 May 2020, he reported that the decision was made to start moving staff out of the unit. He felt as the level of work had dropped due to COVID it was a good time to make the changes. He received information from HR about the length of Service of staff members and he decided to move the three members with the longest service two Veterinary Officers and one TAO at the same time as he felt it would be less disruptive for the unit.  Mr Drea confirmed that at this point in time he had no knowledge of the fact that the Complainant had made a protected disclosure. He told the TAO face to face about the move but when he rang the Complainant, he could not get through to him, so he sent an email. When the Complainant and his colleagues were transferred, they still had to finish out some cases they were involved with but other cases that were at early stages were divided out amongst the new staff.

 Under cross examination by Ms O’Flynn BL the witness stated that when he arrived in Investigations Division there were five investigators two of whom were Vets. When he left in 2023 there were seven investigators three of whom were Veterinary Inspectors. In response to a question about the timing of his decision to start the mobility process the witness stated that it made sense to him to make the moves while the field work was restricted arising from COVID. He also confirmed that the selection criteria he used for mobility was length of service in the unit.  The witness confirmed that the Complainant was a productive investigator and very focused on his work, but he was very angry about being moved out of the unit.

The next witness for the Respondent was Mr Lyons who confirmed that he was a former Senior Veterinary Inspector based in Waterford office looking after animal welfare for the regions. He confirmed that he retired in May 2022. The work his team carried out was very important to Ireland’s import and export trade. There was also a small amount of investigative work. It was his evidence that he did not accept that this work was less important that the Complainant’s previous work.  He was delighted when he heard the Complainant was coming to work in his unit and he disputes the allegation that the position was a makey up one as there was plenty of work to go around. The Complainant did not reach out to him prior to reporting for duty on 29 June 2020. He met with the Complainant on 2 July 2020 in Waterford. He offered to provide training and mentoring and to assign duties to him The Complainant indicated that he would only have limited availability as he was finishing out some Court work he was involved with. Mr Lyons stated that he informed the Complainant that he should let Ms Morgan know his availability. He confirmed that he was aware that the Complainant on one occasion had gone out with another Vet to do blood testing.  Mr Lyons stated that at that time he included the Complainant on the mailing list for Vets in his area.  From about mid-July any time he contacted the Complainant to give him work the Complainant stated he was unavailable due to Court cases. The Complainant was then out sick for a period of time in the last quarter of 2020.  It was Mr Lyons evidence that he contacted the Complainant regularly about his availability to do work in his new unit, but he kept saying that he was still finishing Court cases. He referenced an email he had sent in July 2021 trying to establish if the Complainant was available to him to do RVO work.

Under cross examination Mr Lyons confirmed that he knew the Complainant was unhappy with being moved. He did indicate at the time that he did not think he was treated well but he was not aware of the structure review that had occurred or the basis for the move. He confirmed that he got a phone call or email from his line manager on the Friday beforehand to say the Complainant was taking up duty the following Monday. He confirmed that he had not asked for extra staff but was glad to have the Complainant assigned to his unit.

He confirmed that prior to his retirement in May 2022 the Complainant had never come back to him to indicate he was available to do work.  He confirmed that he took the Complainant at his word when he stated that he was tied up with Investigations Unit work that he was finishing out.

The Final witness for the Respondent was Mr Corbett who informed the Court that he had worked in HR for seven years, He confirmed that the standard Departmental mobility policy did not apply to the Veterinary staff at that time and that they had their own voluntary transfer system for moving between geographical areas. He first became aware that there was an issue when the VOA wrote looking for clarification on 19 June 2020. His role in HR was IR and that was why the VOA had written to him. He confirmed that he had no involvement with the transfer.

6 The applicable law

S 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.

(2) Subsection (1) does not apply to the dismissal of an employee to whom section 6(2)(ba) of the Unfair Dismissals Act 1977 applies.

(3) Schedule 2shall have effect in relation to an alleged contravention of subsection (1) .

(4) Subsection (3) does not apply in relation to the penalisation of an employee if the employee is within paragraph (d) of section 2(1) of the Unfair Dismissals Act 1977.

(5) Any person who, on examination authorised under paragraph 3(1) of Schedule 2, wilfully makes any material statement which the person knows to be false or does not believe to be true commits an offence and is liable on summary conviction to a class A fine or imprisonment for a term not exceeding 12 months or both.

(6) ………

7 Discussion

In order to make out a complaint of penalisation, the Complainant is required to establish that the detriment he suffered was imposed for making a Protected Disclosure. It is not in dispute in this case that the Complainant made a protected disclosure. The Complainant in his submission and evidence stated that the penalisation was his transfer to the new unit resulting in him being assigned work which he believes was of a lesser value. The first thing the Court must consider is whether or not his transfer was linked to his protected disclosure. The Court accepts the submissions of the Complainant’s representative that the gap in time between the Protected Disclosure and the transfer in this case, cannot be sufficient in and off itself to say they are not linked. The following facts before the Court, were undisputed:

• Both the review in 2014 and 2018 recommended staff mobility in Investigation Unit.
• The 2014 review predates the Complainant’s Protected Disclosure and the process that led to the 2018 report commenced before his Protected Disclosure.
• The Complainant was aware that staff mobility was being discussed in respect of Investigations Unit (although he did not believe it would apply to him)
• At the time of the transfers the three members of staff with the longest service of which the Complainant was one were moved.
• Mr Drea who made the decision to implement the transfers did not know at the time that the Complainant had made a protected disclosure.
• Even after his transfer in June 2020, for a long period of time after that, the Complainant continued in the main to carry out work for the Investigation Unit and not the new Unit he was assigned to.

Applying the ‘but for’ test to the above facts it is clear to the Court that even if the Complainant had not made a Protected Disclosure, he would have been transferred out of Investigation Unit in June 2020 because he was one of the longest serving members of staff. On that abasis the Court determines that the Complainant has not established that he was penalised contrary to the Act for making a Protected Disclosure.

8 Decision

 The Court having decided that the Complainant was not penalised does not uphold his appeal.

 The Appeal fails. The decision of the Adjudication Officer is upheld.

The Court so decides.

	Signed on behalf of the Labour Court
	Louise O'Donnell
FC	______________________
25th April 2025	Deputy Chairman

NOTE

Enquiries concerning this Decision should be addressed to Fiona Corcoran, Court Secretary.