Complainant

Respondent

Parties

Michael Murphy

Office of the Director of Public Prosecutions

Representatives

Tiernan Lowey BL

Kiwana Ennis BL

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00059609-001

25/10/2023

In June 2000, the complainant commenced employment with the Office of the Chief State Solicitor.  In October 2002, he moved to the ODPP as a legal executive.  He was promoted the following year to a role as a higher legal executive. 

The ODPP is organised into four divisions:

1.       Prosecuting Support Services Division

2.       Directing Division

3.       Corporate Services Division

4.       Solicitors Division

In April 2017, the complainant qualified as a solicitor and was assigned as a prosecutor in the District Court Section.  The District Court Section sits in the Solicitors Division, which employs around 84 solicitors and is headed by the Chief Prosecution Solicitor, Ms Helena Kiely, and comprises five sections:

1.       Appeals Section

2.       Circuit Court Section

3.       District Court Section

4.       Judicial Review Section

5.       Superior Courts Section

From the respondent’s submission, I learned that prosecutors are assigned a caseload with the objective of providing a service to the Director of Public Prosecutions in all prosecutions in the Dublin Metropolitan District; the Circuit, Central and Special Criminal Courts and the Court of Appeal.  They are also required to deal with judicial review matters arising from prosecutions.

As a prosecutor in the District Court Section, the complainant has two principal functions; firstly, he is required to represent the Director in the District Court and District Court Appeals in criminal prosecutions.  Secondly, he is responsible for compiling books of evidence for matters proceeding on indictment to the trial courts.  He is also expected to participate in and contribute to Section meetings.

The complainant is a recovering alcoholic and he suffers from the co-morbidities of anxiety and depression associated with that condition.  On April 7th 2023, he submitted a complaint to the WRC alleging that the respondent discriminated against him on the grounds of his disability.  On October 25th 2023, he submitted this separate complaint, in which he claims that, arising from his original complaint, his employer victimised him.  He claims that this victimisation occurred in August 2023, when his manager, Mr Keating, raised issues with his performance and decided to appoint a principal prosecutor to oversee his cases.

In her submission, Ms Ennis referred to a meeting the complainant had with Mr Keating on December 16th 2022.  At this meeting, Mr Keating raised a number of concerns he had regarding how the complainant was handling a number of cases that had been assigned to him.  At a meeting on August 25th 2023, Mr Keating raised further issues with three files and he told the complainant that he would oversee his caseload, with the assistance of a principal prosector in the Section.  The respondent’s position is that the raising of legitimate performance issues with an employee, even if that employee has made a complaint of discrimination, does not amount to victimisation.

Direct Evidence of the Complainant

The complainant gave evidence over two days, beginning on October 30th 2024, with his direct evidence.  He was cross-examined by Ms Ennis on March 24th 2025.  His evidence was very detailed and is recorded in the decision on ADJ-00045153.  For the purpose of this specific complaint, I have noted the complainant’s evidence only in relation to the events of August 2023.

Mr Lowey directed the complainant to a copy of an email from Mr Keating dated August 30th 2023, which referred to a meeting they had on August 25th.  The complainant said that he had been on holidays until July 21st and the purpose of the meeting was to complete a number of outstanding performance review forms.  Although Mr Keating raised no issues in the five weeks since the complainant returned from holidays, at the meeting, he brought up concerns about his work.  In the email of August 30th, Mr Keating listed three cases that had been assigned to the complainant about which he said that “issues arose during the last few weeks.”  Mr Keating told the complainant that he had appointed a principal prosecutor to oversee his case load and he said that he would schedule a meeting in four to six weeks.  The complainant said that, in reply, he wrote to Mr Keating on November 16th 2023, and told him that his decision to oversee his work “is a device clearly fabricated to deter me from proceeding with the complaint (of April 7th 2023) or to discredit my performance or both.”  He said that there was no further communication from Mr Keating about this matter.

The complainant gave details about the three cases raised by Mr Keating at the meeting on August 25th.  Regarding the first issue, Mr Keating said that the complainant hadn’t put an electronic post-it note on the file.  The complainant said that the file wasn’t completed before he went on holidays and it was up to his “work buddy” to put the post-it on the file.  The second issue was in relation to a return for trial that had to be quashed.  Mr Keating told the complainant that he should have sworn an affidavit to ground a judicial review application before he went on holidays.  The third issue concerned a book of evidence that was struck out, with the result that the process had to start again.  The complainant said that the striking out of books of evidence is a feature of the work in the District Court Section because the Section is so busy.

In his evidence, the complainant described Mr Keating’s concerns as “not genuine.”  He said that the issues were not sufficient to support a decision to oversee someone’s work.  He agreed that he could have done better, but he said that it was ridiculous to oversee his work.

The complainant said that he wasn’t offered any assistance by Mr Keating and he is not aware if, by appointing someone to oversee his work, he was following any specific policy.  The complainant said that he isn’t aware if others in his Section had their work overseen, but he said that he wouldn’t be surprised to find that there were others.

The complainant said that his purpose in writing to Mr Keating on November 16th 2023 was to ask him to clarify if he had a genuine basis for his decision to oversee his work.  He said that he was on sick leave from November 16th 2023 until March 2024.  He said that he was “pretty overwrought at the time” and he was prescribed a variation in his medication, which was helpful.  He said that he had no contact with Mr Keating about the issues he raised in August 2023, or any response to his letter of November 16th.  He said that he got a couple of messages asking him when he was due back at work.

Cross-examining of the Complainant

Ms Ennis asked the complainant about his meeting with Mr Keating on December 16th 2022.  The complainant had just returned from a period of absence due to stress.  Ms Ennis reminded him that, at the meeting, he asked to be assigned books of evidence for a murder case.  The complainant said that, while he was on sick leave, Mr Keating told him that he had to re-assign some of his files.  He said that he told Mr Keating that he was finding it difficult to get through the workload of files electronically, a process that Mr Keating introduced in August 2022.

Ms Ennis referred to a memorandum prepared by Mr Keating on November 30th 2022 listing issues of concern regarding six files being worked on by the complainant before he went out sick.  The complainant said “everyone was in trouble with books at that time.”  He said that there had been no problems with his work when he met Mr Keating for his 2022 mid-year review.

Ms Ennis referred again to the meeting the complainant had with Mr Keating on December 16th 2022 when Mr Keating raised issues with six files.  She asked how the August 2023 meeting was different, when there were issues with three files.  The complainant said that the issues raised in August 2023 were very minor.

Ms Ennis reminded the complainant that some of the issues raised in August 2023 were raised in November 2022, for example, a book of evidence being struck out.  She asked how this could be considered as victimisation.  The complainant said that the first issue was about not putting an electronic post-it note on a file.  The second issue was about a book of evidence being struck out and the third issue was about his failure to swear an affidavit before he went on holidays.  He said that none of this warrants the decision to have his work overseen.  He claims that these matters only became issues of concern after he submitted a complaint to the WRC in April 2023.

Ms Ennis said that, regarding the post-it note, Mr Keating’s evidence will be that it is essential to have this note on a file so that the solicitor knows what to do when they appear in court.  The complainant disagreed with this.  He said that “probably the most serious issue” raised by Mr Keating was his failure to submit a grounding application for an affidavit for in a judicial review case before he went on holidays.  He said that the striking out of the book of evidence was “very minor” and that it would have been serious if the defendant had been in custody.

Ms Ennis put it to the complainant that, from Mr Keating’s perspective, it is important to avoid cases being struck out.  She said that the issues raised in August 2023 were in the same category as those raised in November 2022, and that they warranted a discussion.  She said that there is no evidence of the August 2023 discussion being motivated by an intention to victimise the complainant.  The complainant did not agree.

Asked by Ms Ennis why he didn’t submit a grievance about his concerns, the complainant said that he got the impression that managers didn’t want to deal with him.  He said that he didn’t invoke the grievance procedure because he associates it with “bullying and such.”  He said that he didn’t look for advice from HR.

Mr Ennis referred to s.74(2) of the Employment Equality Act 1998 which provides that one example of victimisation is the adverse treatment of an employee in reaction to the employee having made a complaint to the WRC.  She said that the essential element of victimisation is that the making of the complaint of discrimination is the influencing factor in the decision to impose the impugned detriment.

Ms Ennis remarked that the complainant has made no attempt to set out the primary facts on which he grounds this complaint of victimisation.  Performance issues were raised with the complainant at a meeting on December 16th 2022, before he lodged his first complaint.  At the meeting, the complainant was informed that his files would be monitored in the following months.  Mr Keating raised further issues at a meeting on August 25th 2023, after the complainant lodged his complaint of dscrimination.  Ms Ennis submitted that this is not evidence of victimisation.  She said that raising a legitimate performance issue with an employee who has made a complaint of discrimination does not amount to victimisation.  Crucially, she pointed out, the complainant has not demonstrated that the raising of performance issues in August 2023 was influenced by the lodging of the first complaint in April that year.

Evidence of the Chief Prosecution Solicitor, Mr Declan Keating

Mr Keating said that he has been with the ODPP for more than 20 years and he was the head of the District Court Section and the complainant’s line manager from April 2022 until May 2024.  He worked in the Section for seven years when he started with the ODPP, but had not been there for 10 years when he became head of the Section.  In the role, he had around 20 solicitors reporting to him, plus a number of administrative staff.

The complainant was absent from work due to stress from November 10th until December 14th 2022.  Mr Keating described this absence as unanticipated and he said that he had to check the complainant’s files or ask his deputy to check files and deal with urgent issues.  In the documents submitted for the hearing, Ms Ennis included a memorandum prepared by Mr Keating on November 30th 2022 listing six issues of concern regarding the files being worked on by the complainant before he went absent. 

Ms Ennis asked Mr Keating what the complainant’s response was when he spoke to him on December 16th 2022 after he returned to work.  Mr Keating said that it was important for him to raise the issues with the complainant.  With regard to two of the issues, keeping files at home and having a book of evidence struck out, he said that he considers these to be very serious.  He said that he asked the complainant if he needed assistance, but he didn’t ask for any.  He said that he looked for more complicated files.  Mr Keating completed a return to work meeting note which he sent to the complainant on December 21st for his comments.  In the note, Mr Keating wrote:  

“Michael and myself discussed some issues that arose while he was on leave, mainly relating to the preparation of BOEs and also the return of files (for District Court Appeals).  I said that we would consider this again in a month.  In response, Michael explained that he would like to be assigned more complex BOEs, especially for fatal offences.”

There is no evidence that the complainant added any content to the return to work meeting note or that he signed it. 

On April 4th 2023, the complainant submitted a complaint of discrimination to the WRC.  

The complainant was on holidays in July 2023 and Mr Keating said that issues arose with some of his files.  He said that he felt that it was incumbent on him to meet the complainant when he returned from leave.  At the meeting on August 25th, Mr Keating said that he asked the complainant how he was and he went through the files that he was concerned about.  He followed up with an email on August 30th in which he referred to the three files and told the complainant that he intended to oversee his case load with a principal prosecutor in the section.  Mr Keating concluded his email by saying,

“In the meantime, if you have any queries or would like to discuss any specific needs, please let me know.”

On November 16th, the complainant sent him a letter.  Mr Keating said that he had arranged to meet the complainant about another matter, but he got this letter and a medical cert.  The complainant was absent then until March 2024.

Addressing the issues he raised at the meeting on August 25th 2023, Mr Keating said that the post-it note system is a procedure by which the prosecuting solicitor indicates to the solicitor attending court if the file is ready or when it will be ready.  While the complainant said that this was a minor issue, Mr Keating said that it is serious, because he needs to know when books are ready so that he can assign a prosecutor to file the book of evidence in court.  He said that the solicitor attending court needs to have as much information as possible to present the case.  Mr Keating said that the District Court system cannot work without the post-it system.

The second issue Mr Keating raised with the complainant was the striking out of a book of evidence.  Mr Keating said that he wasn’t sure if this was the same matter that he raised with the complainant in November 2022, but he said that he doesn’t agree that the matter is not serious.  He said that it rarely happens that books of evidence are struck out and that they are normally granted more time.  Mr Keating said that he gets an email alert when a book is struck out and he remembers once or twice sending the complainant an email asking him why books that he had been working on were struck out.  Mr Keating said that the complainant wasn’t forthcoming with a reason.

With regard to the third issue raised at the meeting, Mr Keating said that the case in question was returned for trial from the District Court to the Circuit Court.  He said that this was an error and was no one’s fault.  A judicial review was required and the judicial review section took the lead to bring the case to the High Court.  The complainant’s position was that there was no rush to get this done, but Mr Keating said that he disagreed.  He said that judicial review issues are extremely urgent and, as July is the end of term in the High Court, the application for this case had to be made as soon as possible.  Mr Keating’s view is that the complainant was in the best position to complete the affidavit because he had worked on the file.  He said that he had to do the application himself.

Cross-examining of Mr Keating

Mr Lowey referred to the memorandum of November 30th 2022.  Mr Keating said that he prepared this memo for himself to address the issues that arose when the complainant was on sick leave.  He said it was an “aide memoire” so that he had a record of the issues he wanted to discuss with the complainant when he came back.  Mr Keating said that this wasn’t an assessment of the complainant’s performance.  He said that he had a responsibility to explain what had happened with his files.

Mr Keating said that the purpose of the meeting on August 25th was to discuss issues that came up while he was on holidays.  He said that he was doing the diary and the post and he had to re-assign some of the complainant’s files.  He said that he remembers emails to and from the complainant telling him that he wanted to discuss certain files.  Mr Keating said that they were not disciplinary matters and he said that the meeting was pleasant.  Mr Keating disagreed with Mr Lowey’s suggestion that he “sat on the issues until August 25th.”  He said that he may have been on holidays when the complainant returned at the end of July.

Mr Keating said that the meeting he referred to in his email of August 30th, which was intended as a follow up with the complainant, never happened.  He said that there were some changes in the division and the intended review did not take place.

Mr Lowey said that the meeting of August 25th 2023 came four months after the complainant submitted a complaint of discrimination to the WRC.  Mr Keating replied that the issues he raised at the meeting with the complainant were very serious and that it was incumbent on him to deal with these issues.

Mr Lowey said that, if the issues were serious, should they not have been addressed in the complainant’s mid year review?  Mr Keating said that he stands over the remarks he made on the complainant’s mid year review document in which he stated,

“Mick is a valuable member of the District Court team.  He is conscientious, diligent and hard-working.  He is also mentoring a new member of the team which is of great assistance.”

Mr Lowey asked Mr Keating why he didn’t reply to the complainant’s letter of November 16th 2023.  Mr Keating said that he received this letter with a copy of a medical certificate.  He said that he didn’t want to contact the complainant while he was out sick.  He said that he sent him a text message once or twice asking him how he was and when he was coming back.

The Relevant Law

The complainant’s case is that he has been victimised contrary to s.74(2) of the 1998 Act, which, under the “Interpretation” heading, defines “victimisation” as,

…dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to

(a) a complaint of discrimination made by the employee to the employer[.]

The remaining subsections (b) to (g) are not relevant to the complaint under consideration.

It is the complainant’s case that the adverse treatment he suffered was the meeting with his manager, Mr Keating on August 25th 2023, and Mr Keating’s decision to appoint a more senior colleague to oversee his files.

Consideration of the Facts

The complainant submitted a complaint of discrimination to the WRC on April 7th 2023.  There had been some problems with six files on his caseload when he was absent in November / December 2022 and Declan Keating had a meeting with him when he returned to work on December 16th.  When he was on annual leave in July 2023, there were issues with three files and Mr Keating called him to a meeting on August 25th.  On that occasion, Mr Keating decided that the complainant’s cases should be overseen by a colleague, a principal prosecutor.

Findings

While he may have been unhappy at the prospect of having a discussion with his manager about his cases, the request to the complainant to attend a meeting on August 25th 2023 was not adverse treatment.  Similarly, the appointment of a senior colleague to oversee his files was not adverse treatment, but may have been of assistance to him to manage his files, to become more proficient with the challenges of the electronic submissions or to learn from someone more senior.  It is my view that Mr Keating’s offer to the complainant to discuss any specific needs with him was genuine, and that his objective was to resolve the issues with the three files and to support the complainant to do his work to the required standard.

In the absence of any credible evidence that the complainant suffered some disadvantage from the meeting of August 25th and the decision to ask someone to oversee his files, I find that there is no substance to his claim of victimisation.

For the reasons I have set out, I decide that this complaint is not well founded.

Discrimination, victimisation, adverse treatment