Complainant

Respondent

Anonymised Parties

Firefighter

County Council

Representatives

Mr. Kilian McGovern BL, instructed by Crushell & Co. Solicitors

Ms. Amanda Kane, LGMA

Act

Complaint Reference No.

Date of Receipt

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

CA-00062678-001

09/04/2024

The Complainant commenced employment on 13th November 2017. At all relevant times, the Complainant’s role was described as that of “firefighter”. The Complainant remains a permanent member of staff, in receipt of an average weekly payment of €761.54.

On 9th April 2024, the Complainant referred the present complaint to the Commission. Herein, he alleged that the Respondent had penalised him for raising a series of protected disclosures. In particular, the Complainant alleged that following the communication of the protected disclosure in question, the Respondent failed to provide a safe system of work, failed to properly investigate the allegations and that they caused him to suffer a reduction in earnings. In answering the complaint, the Respondent submitted that they did all within their power to ensure a safe system of work for the Complainant. They further denied that the Complainant suffered any diminution in earnings or any other contractual terms in the course of his employment. Finally, they submitted that the grievances raised by the Complainant could not constitute protected disclosures as defined by the Act.

Following an earlier case management session, the hearing for this matter was initially set down for 28th February 2025. As the evidence did not conclude on this date, a further hearing was convened for 10th April 2024, with the matter concluding on that date. These hearings were held in person at the Commission’s Sligo offices.

Both parties issued extensive submissions in advance of the hearing. Said submissions were expanded upon and contested in the course of the hearing. The Complainant gave evidence in support of his allegations, while a member of management for the Respondent gave brief evidence in defence. All evidence was given under oath or examination and was opened to cross examination by the opposing side.

In circumstances whereby the subject matter of the present complaint is under active consideration in an alternative proceedings, I have utilised by discretion to anonymise the decision in its published form.

No preliminary issues as to my jurisdiction to hear the complaint were raised at any stage of the proceedings.

In evidence, the Complainant stated that he was engaged as a firefighter within the Respondent organisation. Shortly following the commencement of his duties, the Complainant stated that he suffered a campaign of bullying at the hands of a person within this station.

The Complainant stated that he raised these issues by way of the internal incident report forms on various dates over August 2021. On foot of the Respondent’s failure to adequately respond to the same, the Complainant subsequently referred a formal complaint under the Respondent’s dignity at work procedure.  This complaint set out 24 separate allegations of inappropriate and oppressive behaviour on the part of the individual in question. The Complainant set out, in some detail, the nature of these allegations, including specific dates, times, and the nature of the events. These allegations included not only verbal issues, but also numerous physical assaults on the part of his respondent to the complaint. Following the lodgement of this formal complaint, the complainant was left working directly with the individual in question, without any form of intervention, for a period of 52 days.

On 30th August 2021, the Complainant specifically requested the imposition of control measures to prevent the respondent to the complaint from continuing his campaign of harassment and bullying. One month later, on 30th September 2021, the Complainant was informed of control measures that would be put in place to supposedly protect him in this regard. The Complainant attended a meeting with the expectation of being informed of the nature and extent of these control measures. However, later that afternoon, the complainant was emailed to complete a different set of measures that were to be put in place. These control measures included a direction that the individual in question would not attend calls with the Complainant, that the Complainant would not be obliged to attend calls with the individual, that a third party was to be present during any interaction between the parties and that the Complainant receive ongoing updates as to the status of the investigation. At this point, the complainant began to harbour considerable concerns about the manner in which his complaint was being dealt with and the Respondent’s ability or inclination to deal with the same. In evidence, the Complainant stated that each of these control measures was breached by the Respondent numerous times and on a consistent basis over the coming months and years.

On 1st October 2021, the Complainant received terms of reference in relation to a forthcoming investigation of his complaints. At this point, the Complainant had significant concerns regarding the delays in the process at this point. Nonetheless, he was informed by the investigator that the process would finalise in good time thereafter. Forty-two days later, on 10th November 2021, the Complainant had a meeting with the investigator. Seventy days after that, on 19th January 2022, the Complainant received the minutes of the investigation meeting. The Complainant then received the minutes from the respondent to the complaint on 24th May 2022. At this point, the Complainant formed the view that the Respondent seemed uninterested in pursuing his complaint, and, given the nature of the delays and the extent of the same, he was concerned that the bullying behaviour to which he was subjected would simply persist without any material intervention on the part of the Respondent.

On 23rd June 2022, the Respondent permitted a significant breach of the control measures, placing the Complainant in direct contact with the subject of his complaints. Again, this served to undermine the Complainant’s confidence in the Respondent’s ability or willingness to safeguard his well-being and the Respondent’s commitment to adherence to the purported control measures. On 18th July 2022, the Complainant commenced a period of certified leave due to the failure of the Respondent to adequately protect him.

On 13th November 2022, the Complainant received the investigator's report. The report upheld 12 of the complaints, including numerous complaints of physical assault. Despite these findings, the Complainant stated that he had lost all faith in the Respondent to properly address the bullying behaviour within the workplace. In addition to the considerable delays in finalising the process, the Respondent repeatedly permitted the perpetrator of the bullying behaviour to have direct contact with the Complainant in contravention of their own control measures.   

In addition to the same, the Complainant submitted that he suffered a significant ongoing financial loss due to the control measures that had been put in place, which were exacerbated by the ongoing delays in the process to that point. The Complainant stated that 398 passed from the referral of the complaint to the Respondent to the finalisation of the investigator's report. This delay, in the Complainant’s view, was inordinately long and undermined the process as a whole.

On 22nd of February 2023, the Complainant was informed that the respondent to the complaint had issued an appeal of the findings, but that appeal had concluded. Thereafter, on 23rd of May 2023, the Complainant received an email from the Respondent’s HR department, stating that the disciplinary process that had been undertaken on foot of the findings of the investigation had concluded. At this point, the individual in question had clearly not been dismissed and had continued to work with the Complainant. In this regard, the Complainant stated, in evidence, that the individual’s behaviour had not improved and the adverse behaviour continued unabated. The Complainant had, at this point, submitted a further grievance and, again, had experienced significant delays in the processing of this application. When the Complainant referred to his further grievances, he was informed the next day that the Respondent intended to lift the control measures and that the parties would work together without any form of protection. While the control measures were reinstated the following day, the Complainant submitted that the Respondent demonstrated an ongoing reluctance to protect him from the bullying behaviour. On the date of the hearing, the parties still worked together, the control measures and ongoing loss of earnings were still in place; and the second internal grievance was still ongoing, years following the initial complaint on the part of the Complainant.

In this regard, the Complainant stated that he was penalised on foot of issuing a protected disclosure. He stated that his former grievance raised matters clearly and unambiguously alleged that the Respondent’s failed to protect his health and safety. He stated that he communicated this to the Respondent in good faith and in accordance with their own in internal procedures. Thereafter, the Respondent installed control measures which had a detrimental effect on the Complainant's ability to earn an income. In this regard, he stated that he was placed on external calls on alternative weeks to the respondent to the complaint, a system that prevented him from earning numerous allowances related to such activities. The complainant also stated that he suffered a loss in that a wage increase negotiated before the WRC was not properly applied to him. He further stated that the Respondent was guilty of an inordinate delay in processing the complaint. In evidence, the Complainant stated that numerous emails setting out breaches of the control measures were either ignored entirely or were unsatisfactorily answered following several reminders from the Complainant. Finaly, he submitted that the Respondent permitted an ongoing campaign of bullying and harassment to continue without any consideration of his health, safety or wellbeing.  

Having regard to the foregoing, the Complainant submitted that he suffered significant penalisation within the definition of the Act and submitted that his complaint should be deemed to be well-founded.

From the outset, the Respondent denied that the Complainant had made a protected disclosure within the meaning of the Act. They further denied that the Complainant either suffered a detriment or was penalised within the meaning of the Act.

In this regard, the Respondent accepted that the Complainant referred a substantial inter-personal grievance in accordance with their internal dignity at work policy. Following an initial review of the same, a number of control measures were agreed with all relevant parties to ensure the protection of the Complainant whilst the investigation was ongoing. In this context, the control measures were intended to minimise disruption for the Complainant and the Respondent insofar as possible, whilst ensuring minimal contact during the normal execution of their work and duties. Whilst the Respondent accepted that these control measures were not a perfect solution, and that they did involve some disruption to the Complainant’s working schedule, they submitted that same represented the most reasonable manner of separating the parties whilst the investigation was underway.

The Respondent denied that the Complainant incurred any loss of earnings as a consequence of the control measures implemented. They submitted this issue was the subject of a separate complaint to this forum, with an agreement being achieved in advance of the same, leading to the withdrawal of the complaint in question. In addition to the foregoing, the Respondent submitted that the Complainant’s earnings actually increased during the period during which the control measures were in place.  

In addition to the foregoing, the Respondent submitted that they dealt with the complaints raised by the Complainant in an appropriate manner. They accepted that a significant amount of time elapsed between the referral of the initial complaint and the delivery of the investigation report. However, they stated this is not unusual in complex internal complaints, particularly those involving multiple witnesses and very serious allegations. They submitted that many of the investigation's findings were favourable to the Complainant, with many of his allegations being upheld. Whilst the Complainant disagreed with the outcome of the subsequent disciplinary policy, the Respondent stated that the subject matter of this policy is a matter solely between them and the respondent to the complaint. Whilst the Complainant's views were considered, they could not dismiss the person in question based on the Complainant's views alone. In this regard, they had to remain mindful of that person's own rights when arriving at such an outcome. They further stated that additional investigations were continuing in relation to this person and had not been finalised by the day of the hearing.

Whilst the Respondent accepted that breaches of the control measures may have occurred, they stated these were not deliberate acts by the parties, and that it was exceptionally difficult throughout the entire process to ensure that the parties would have absolutely no contact in a work-related environment. When these breaches were brought to the Respondent's attention, the Respondent took all reasonable steps to prevent them from reoccurring. In this respect, the Respondent absolutely denied that the Complainant suffered any penalisation on the basis of disclosures he made. They stated that the internal process was conducted fairly and in compliance with all the principles of natural justice. They denied that the Complainant suffered a loss of earnings and stated this had been resolved some time before the referral of the present complaint. In this regard, a witness for the Respondent also produced documentation demonstrating that the Complainant's rate of pay actually increased throughout the period the control measures were active.

Finally, the Respondent submitted that, as the present matters related to inter-personal issues raised by the Complainant, they contended that the same cannot constitute protected disclosures within the meaning of the Act.

Considering the cumulative effect of the aforementioned points, the Respondent submitted that the Complainant's application under the Act should be deemed to be not well-founded.

In the present case, the Complainant has alleged that he made numerous protected disclosures regarding the Respondent’s failure to provide a safe system and place of work. Thereafter, the Complainant stated that he suffered numerous forms of penalisation. In particular, he submitted that he was subjected to a number of “control measures” that had the effect of reducing his capacity to earn wages, that the Respondent failed to abide by the measures in question, causing him further harm, and that the Respondent failed to investigate the complaints in a timely or appropriate manner. By response, the Respondent initially denied that the Complainant made a protected disclosure within the meaning of the Act. In addition to the same, they denied that the Complainant suffered any penalisation on foot of the same. In this respect, they submitted that the relevant control measures were implemented to protect the Complainant and were designed so as to impose minimal disruption on the parties for the duration of the internal procedure.

In this regard, Section 5(1) of the Protected Disclosures Act defines a “protected disclosure” as the “disclosure of relevant information made by a worker in the manner specified”.

Thereafter, Section 5(2) defines “relevant information” as that which, “in the reasonable belief of the worker…tends to show one or more relevant wrongdoing…”.

Section 5(3)D goes on the enumerate the following as an example of a relevant wrongdoing that might give rise to a protected disclosure,

“…that the health or safety of any individual has been, is being or is likely to be endangered”.

Thereafter, Section 5(5A), as inserted by the Protected Disclosures (Amendment) Act 2022, provides that,

“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.”

Notwithstanding the foregoing, Schedule 7 to the Act relates to various “transitional measures” relevant to the amendment of the primary Act.

Section 2 of this schedule provides that,

“Subject as provided for therein, section 12 (amended by section 21 of the Act of 2022) and Schedule 2 (amended by section 25 of the Act of 2022) shall apply where a worker within the meaning of section 3 (being that section in the terms as it stood before the commencement of section 4(a)(iii) of the Act of 2022) who is or was an employee—

(a)          made a protected disclosure within the meaning of section 5 (being that section in the terms as it stood before the commencement of section 6 of the Act of 2022) before the date of the passing of the Act of 2022, and

(b)          was penalised after the date of the passing of the Act of 2022 for having made such a disclosure.”

Section 5(5A), quoted above, was inserted into the principal Act by virtue of Section 6 of the Protected Disclosures (Amendment) Act 2022, which commenced on 1st January 2023. In circumstance whereby the alleged protected disclosure was communicated in 2021, and with many of the alleged determents continuing to the date of the hearing (and well past the date of the amendment of the Act), it is apparent that Part (a) referenced above, is operable. In such circumstances, the relevant provision for the purposes of the present complaint is Section 5, as it was prior to the amendments and insertions provided for by the Protected Disclosures (Amendment) Act 2022. As Section 5(5A), referenced above, was inserted in its entirety by virtue of Section 6 the Act of 2022, it is apparent that the same does not fall to be considered in determining whether the allegations of the Complainant are to be considered a “relevant wrongdoing” for the purposes of the primary Act.   

In this regard, it is noted that the relevant formal complaints raised by the Complainant were issued on 30th August 2021. This correspondence sets out, in admirable detail, 24 separate allegations of inappropriate conduct on the part of the respondent to the complaint. While these are undoubtedly serious in nature, include details of several physical assaults, it is clearly the case that the same relate to an inter-personal grievance affecting the Complainant only.

Thereafter, the Complainant raised numerous issues regarding the “control functions” imposed by the Respondent. Said functions were implemented in an effort to separate the parties as equitably as possible pending the completion of the internal investigation. While the Complainant did not raise significant issue with the implementation of the control functions in theory, he submitted that the same were imposed for an unduly lengthy period of time, that the same were routinely breached by the respondent to the complaint without apparent consequence and that the manner by which the same were implemented caused him a substantial loss of earnings. The Complainant further alleged that the inappropriate behaviour continued unchallenged and that the Respondent failed to protect him in the course of his employment.

In addressing these issues, counsel for the Complainant referred to the Supreme Court decision of Baranya and Rosderra Irish Meats Group Limited [2021] IESC 77 and in particular the passages 27 & 28 of the same, as set out below,

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

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

In the matter of Barrett -v- An Garda Siochana [2022] IECA 112, the Court of Appeal summarised the foregoing passage in the following terms,

“The fact that a communication concerns the treatment of the employee who is making the complaint (and not, for example, another employee) does not prevent the communication being a protected disclosure;”

In this regard, the formal complaint raised by the Complainant under the Respondent’s dignity at work policy unambiguously alleges, on numerous occasions, that his health and safety is endangered by the actions of the respondent to the complaint. Thereafter, and again on multiple occasions, the Complainant alleged that the Respondent failed to provide a safe system of work for him, and by extension endangered his health and safety, by failing to implement and enforce by the control measures designed to separate the parties.  In these circumstances, and in consideration of the authorities cited above, I find that the Complainant communicated a “relent wrongdoing” as defined by the Act. As a consequence of the foregoing, I find that the Complainant’s formal complaint under the dignity at work policy constitutes a protected disclosure within the meaning of the Act.

As set out above, Section 3(1) defines “penalisation” as,

“…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”.

This section goes on to specifically enumerate, “transfer of duties, change of location of place of work, reduction in wages or change in working hours”, “the imposition or administering of any discipline, reprimand or other penalty (including a financial penalty)” and “discrimination, disadvantage or unfair treatment” as specific examples of detriments that might give rise to a finding of penalisation.

In the matter of Conway v Department of Agriculture, Food, and the Marine [2020] IEHC 665, Hyland J. held that,

“Section 12(1) prohibits penalisation (which necessitates an inquiry as to whether an act or omission affecting the worker to their detriment exists) where it results from the making of a protected disclosure.”

Later, at paragraph 75, Hyland J finds that,

“The ordinary and natural meaning of the word detriment is harm or damage. Thus, the legislature requires that the detriment must be of a nature as to harm or damage the person making the disclosure.”

In evidence, the Complainant alleged numerous purported wrongdoings that he perceived as detrimental. In this regard, the Complainant stated that the undue delay in investigating the complaints caused him significant levels of distress and eroded his faith in the Respondent’s ability or willingness to protect his well-being. This assertion of perceived detriment bears a resemblance to the facts of Conway, cited above. In that matter, a delay in processing and investigating the content of a protected disclose was not deemed to be a detriment that might give rise to a claim of penalisation.

At paragraph 75 of that judgement, Hyland J held that,

“One can understand the frustration and annoyance the appellant presumably suffered while waiting for a reply to his emails querying the progress of the investigation. But there is no evidence whatsoever that this lack of response impacted upon the appellant’s situation either in the workplace or elsewhere.”

Regarding the present matter, it is common case that many of the allegations raised by the Complainant, including several of the more serious matters, were upheld in the report once the same was issued. As such, it is apparent that the Complainant did not take issue with the findings of the report, rather his concern related to the delay with the finalisation of same. While this might indicate that the Complainant did not suffer any detriment, in that the findings were broadly to his favour, it not the case that the delay in question did not impact on the Complainant’s working conditions, as found in Conway. For the duration of the investigation, the Complainant’s employment was subject to various “control measures”. While it was the position of the Respondent that same did not impact on the Complainant’s capacity for earnings, and this will be discussed further below, the Complainant stated in evidence that the same were breached on a consistent basis by the respondent to the complaint. The position of the Complainant was that the duration of the investigation created a situation whereby the adverse behaviour in question was permitted to continue, endangering his health and safety. Having regard to the foregoing, I find that the alleged delay in finalising the investigation, giving rise to the alleged breaches of the control measures, can constitute detriments that might give rise to a finding of penalisation. In this regard, it should be noted that the Respondent did not call a witness to contradict the Complainant’s allegations of the various breaches of the control measures, with their position being that the same were implement as effectively as possible in the circumstances. In these circumstances, I find that the control measures were in fact breached as outlined by the Complainant and he did suffer a detriment defined by Section 3.

In addition to the foregoing, the Complainant submitted that the manner in which the control measures were implemented caused him to suffer an ongoing loss of earnings. In this regard, for the duration of the investigation, the Complainant did not attend external calls on alternating weeks. This prevented him from interacting with the respondent to the complaint, who attended such calls on the opposing weeks. This situation created a potential loss of earnings for the Complainant, in that certain allowances related to such calls were not payable on the weeks the Complainant did not attend same. In consideration of the same, a sum was to be paid to the Complainant for the duration of the investigation to compensate any potential losses.  The Complainant’s issue in respect to this arrangement was that an increase in terms, agreed for all firefighters by way of conciliation while the investigation was ongoing, was not properly incorporated into this figure. As a consequence of the same, the Complainant alleged that he suffered a loss of earnings. By response, the Respondent submitted that this issue was referred to this forum under alternative legislation, and that the parties agreed an increased figure in advance of the hearing of the same.

Having regard to the foregoing, I cannot find that this issue constitutes “harm or damage” to the Complainant as outlined in Conway, cited above. In this regard, the Complainant agreed a sum of compensation for potential lost earnings for the duration of the investigation and subsequently agreed an increase in the same on foot of an amendment to his terms. In consideration of the foregoing, I find that there is no evidence of any harm or damage caused to the Complainant regarding the issue of payment during the investigation, aside from the “frustration and annoyance” of having to negotiate an increase to the same.

The final part of the test relates to a causal link between the detriment suffered and the protected disclosure. In this regard, Section 12(1), as amended, provides that,

“An employer shall not penalise or threaten penalisation against an employee…for having made a protected disclosure”.

In the case of John Clarke v CGI Food Services Limited and CGI Holding Limited [2021] 32 E.L.R.25 Humphreys J. held as follows,

“Decision- makers have to look beyond the mere face value of either side’s arguments in a dismissal dispute given the ease in which a position can be contrived and manipulated Royal mail Group Ltd v Jhuti [2019] UKSC 55 considered.”

Humphreys J. went on to state that,

 “…the evidence here establishes substantial grounds for contending that the performance issues were an attempt, as put in the submission 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 a protected disclosure), 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”

In Barrett, quoted above, the Hyland J. held that,

“A court should be alive both to the possibility that actions by the employer which ostensibly appear legitimate on their face may in reality be connected to a protected disclosure, and the possibility that an employer is taking bona fide steps in respect of an employee who is making unfounded allegations of a connection between the two events.”

In the matter of Aiden & Henrietta McGrath Partnership -v- Ann Monaghan [2017] 28 ELR 8, the Labour Court held that,

“Thus, the detriment giving rise to the complaint must have been incurred because of, or in retaliation for, the complainant having committed a protected act. This suggests that where there is more than one causal factor in the chain of events leading to the detriment complained of the commission of a protected act must be an operative cause in the sense that ‘but for’ the complainant having committed the protected act he or she would not have suffered the determined. This involves the consideration of the motive or reason which influenced the decision maker in imposing the impugned detriment.”

Regarding the burden of proof in relation to such matters, Section 2 of Schedule 7, as cited above, is clear in that while the pre-amendment version of Section 5 is to be considered for protected disclosures prior to 1st January 2023, in circumstances hereby the alleged penalisation occurred following the amendment of the Act, the amended version of Section 12 is to be applied.

In this regard, Section 12(7C) of the primary Act, as inserted by the Protected Disclosures (Amendment) Act 2022, provides that,

“…in respect of an alleged contravention of subsection (1), the penalisation shall be deemed, for the purposes of this section, to have been as a result of the employee having made a protected disclosure, unless the employer proves that the act or omission concerned was based on duly justified grounds.”

In this regard, it is noted that the provision cited above was not in force when the Labour Court issued their decision in McGrath, referenced above. In this respect the burden of proof falls to the Respondent to determine that the detriment in question was based on “duly justified” grounds, as opposed to a consequence of the Complainant’s protected disclosure. This will necessitate an interrogation of the “motive or reason which influenced the decision maker in imposing the impugned detriment” as set out in McGrath, with the Respondent bearing the burden of proof of demonstrating “duly justified” grounds for the detriment in question. If the Respondent cannot discharge this burden of proof, the detriment will be deemed to be penalisation by operation of Section 12(7C).

Regarding the instant case, the Complainant’s detriments fall under two general headings. Firstly, the Complainant alleged that the Respondent permitted an inordinate delay in the investigation of his complaints. The Complainant further alleged that the Respondent permitted the respondent to the complaint to breach the control measures without any apparent consequence, thus creating a situation whereby the adverse behaviour complained of could continue unabated.

By response, the witness for the Respondent submitted that the duration of the investigation while lengthy, was not unusual for complex dignity at work complaints. In this regard, he denied that there was any undue delay in investigating the allegations and absolutely denied that any purported delay arose as a consequence of any alleged protected disclosure. Regarding the alleged breaches of the control measures, the witness stated that the same were implemented in an effort to separate the parties as equitably as possible for the duration of the investigation. Notwithstanding the same, he stated that it would be inevitable that given that the parties still worked in the same station, that they would have some interactions. He further submitted that the Complainant’s second set of grievances related to these matters was being investigated on the date of the hearing, with the outcome of the same being unknown at that time.

Having regard to the foregoing, it is apparent that the detriment in question falls under the heading of “omissions” as provided for in Section 12(7C). In essence, the Complainant has alleged that following the communication of his protected disclosure, the alleged penalisation in question related to the failures of the Respondent in investigating the content of the protected disclosure in a timely fashion and permitting the adverse behaviour comprising the subject matter of the protected disclosure to continue.

Regarding the first point raised by the Respondent, it is clearly the case that formal complaints under a dignity to work policy, particularly a comprehensive policy such as that adopted by the Respondent, can be a drawn-out affair. While this is far from ideal, and can represent a breach of an individual’s rights, it does not automatically follow that these delays, or the other issues complained of by the Complainant, arose of as consequence of the protected disclosure itself. As set out in Conway, cited above, the frustration and inconvenience of a delayed process cannot form the basis of a detriment that might give rise to a finding of penalisation, particularly when the final decision is broadly favourable to the Complainant. Rather, what must be examined is the impact the delay had on the Complainant’s working conditions as the potential form of penalisation.  

As set out above, the Complainant alleged that he suffered ongoing adverse treatment from the respondent to the complaint. He stated that this occurred due to the Respondent’s failure to ensure that the control measures designed to separate the parties were fully enforced. Regarding this allegation, I accept the evidence of the Respondent that the control measures, while well intentioned, were capable of being breached given the nature of the parties’ working relationship. In this respect, the only manner by which the Respondent could ensure with certainty that the parties would have absolutely no interactions, would be to suspend the respondent to the complaint. Given the likely duration of the investigation, and in consideration of the rights of the respondent to the complaint, I accept that the imposition of the control measures represented an acceptable compromise in this respect. While it is perhaps inevitable that the parties would have some interactions on foot of the same, I note that the Respondent has proactively sought to investigate the nature of the same, with the relevant internal process ongoing on the date of the final hearing. In this regard, internal procedures often are subject to various procedural flaws and issues regarding the safeguarding of the parties. In this regard it cannot be the case that once the initial complaint is in the form of a protected disclosure, that everything that follows must be a counsel of perfection, otherwise the same will be deemed to be penalisation as defined by the Act. While Section 12(7C) places the burden of proof in determining that the detriment did not occur as a consequence of the protected disclosures, Section 12(1) provides that the detriment must have occurred “for having made a protected disclosure”. In the present case, I find that the issues regarding the breaches of the control measures alleged by the Complainant occurred as a consequence of the inherent difficulty of separating parties that work together during a length internal process, as opposed to a form of penalisation for having made a protected disclosure.

Having regard to the accumulation of the foregoing points I find that the detriment complained of by the Complainant did not arise as a consequence of the earlier protected disclosure. While it the case that the Complainant’s initial grievance meets the definition of a protected disclosure, and it is apparent that he suffered a detriment thereafter, it not apparent that the detriment in question occurred for having made a protected disclosure, as required by Section 12. In contemplation of the foregoing, I find that the complaint is not well-founded.  

I find that the complaint is not well-founded.

Protected disclosure, relevant wrongdoing, interpersonal grievances, exclusive to the worker, transitional provisions, detriment, duly justified.