PDD258

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00038974 (CA-00049815-001).

BACKGROUND:

The Worker appealed the Decision of the Adjudication Officer to the Labour Court on 6 February 2024.

A Labour Court hearing took place on 10 December 2025.

The following is the Court's Decision:

DECISION:

This is an appeal by Michelle Spellissy (Complainant) against decision ADJ-00038974 CA-000049815-001 of an Adjudication Officer in her complaint against her employer, the Legal Aid Board (the Respondent).  The complaint was made pursuant to the Protected Disclosures Act 2014 (the Act). The Adjudication Officer held that the complaint was not well founded.

1 Background

The Complainant commenced employment with the Respondent in June 2016 as a solicitor, on a series of fixed term contracts and was made permanent in April 2019. She applied for and was successfully in a competition for a transfer to the Portlaoise law centre. The Complainant submits that she made several protected disclosures in 2021 and 2022 and that she was penalised for doing so. The Respondent disputes that she made protected disclosures and that she was penalised.

The complaint was lodged with the WRC on 22 April 2022, therefore, the cognisable period for the purpose of the Act is 23 October 2021 to 22 April 2022.  In advance of the hearing the Complainant made numerous submissions totalling more than 1,380 pages. On the day of the hearing the Complainant proffered a further submission stating it was an update of previous submissions, the Court declined to accept same as the Respondent had not had sight of that submission. At the commencement of the hearing the Complainant indicated that she would read her submission dated 15 May 2024 as her evidence to the Court and that all her other submissions and appendices would be taken as read and opened to the Court.  This case is linked to HSC/24/6.

 2 Summary of Complainant’s case

The Complainant submitted that she had made protected disclosures to her line manager on the following dates. 10 November 2021, 21 November 2021, 23 December 2021, 29 December 2021, 2 February 2022, 24 February 2022, 25 February 2022 and 14 March 2022. The Complainant stated that the penalisation was an unlawful deduction and unfair treatment when a half days pay was deducted.

The Complainant in her evidence stated that on 6 April 2021 she sent an email transmission to the Staff Oversight Group of the Respondent expressing her concerns that reduction in staff/lack of sufficient staff was causing problems for service delivery to clients of the Respondent. In the email she set out the necessity for solicitors to remain in control of their cases and to be able to manage their cases. She also suggested that clerical officers should be taught how to type and noted that solicitors needed to have secretarial support.

The email was discussed at the Staff Oversight Group in relation to Report of the Review into the Operation of Law Centres meeting that took place on 28 April 2021. At the meeting it was stated that anyone feeling overworked should talk to their Managing Solicitor and unreasonable expectations were not what was wanted. The Complainant stated that by February 2022 staff shortage had reached a critical level. Between February 2022 and 29 March 2022 she reiterated these concerns on a number of occasions both orally and in writing. She also raised it in her PMDS that the failure to replace staff was affecting her ability to effectively provide a professional service to the Respondents clients.

Between November 2021 and February 2022, she raised a second concern that a vent near her office was causing her health and safety issues as the loud noise and vibrations were causing her headaches. She also mentioned it in her PMDS for 2021 which was submitted on the 2 February 2022. The Complainant stated that arising from these two complaints she was penalised by an unlawful deduction from her pay. On the 14 March 2022 about an hour after she had raised issues about an electric shock she received from a filing cabinet and staffing and health and safety issues, she was informed that her line manager had made an application for a half day to be classified as an unauthorised absence which affected her pay.

The Complainant stated that she was further penalised by way of a negative performance review on the 21 March 2022. Her Line Manager made comments on her PMDS that she had gone absent without leave. The third penalisation was the threat of disciplinary sanction. It was the Complainant’s evidence that the disciplinary process was in response to the Complainant making protected disclosures and health and safety issues.

It was her position that her line Manager determined without fair procedure that she had taken unauthorised leave when in fact she had attended an Irish exam and then did some work when she returned home. The Respondent had approved the course and had no issue the previous year when she had also completed an exam in similar circumstances.  The Complainant stated she had received approval to attend the course and the exam was part of the course. The course was also of benefit to the Respondent. On the day in question, she had to travel to the exam centre in Dublin, and she put her out of office on her email. The Complainant’s pay and pension was reduced by half a day arising from this incident. This was later found in a separate process, to be an unlawful deduction this finding was not appealed. The Complainant submitted that on the basis that finding was not appealed, the Court should uphold her complaint of penalisation for making a protected disclosure.

Under cross examination Ms Guinness BL asked the Complainant to explain how raising concerns about delivery of service to clients was a relevant wrongdoing, as required by the Act. The Complaint accepted that the delivery of service was a general concern which the Respondent was aware of.  The Complainant confirmed that she believed that an email she sent on 10 November 2021 that had no text in the body and under subject stated “the fan is on again” was a protected disclosure. She also confirmed that it was her position that a further email on that date stating “I understand that an email transmission was sent yesterday in relation to a fan from a restaurant under the law centre. It is very loud and is causing vibrations, please liaise with the landlord as it is very difficult to work” was a further protected disclosure.

In respect of correspondence 16 November 2021 and 24 December 2021 she accepted that correspondence showed that the Respondent did act to resolve the issue with the fan.  The Complainant confirmed that these issues along with the fact that she had received an electric shock from a filing cabinet were the extent of her protected disclosures.

Ms Guinness BL put it to her that she received a static shock from the filing cabinet as opposed to an electric shock. The Complainant stated that she could not accept that as nobody had been sent to check the cabinet. She did however accept that the cabinet was not plugged in or in any way connected to an electricity supply.

In respect of the Irish exam in Dublin the Complainant confirmed that she was told on the 7 February 2022 about the exam. She did not apply for any leave in respect of the exam and accepted that on that day while travelling to and from the exam centre and while sitting the exam she could not access her emails or her files. She also confirmed that she did not make any work calls and that she had not informed her manager she was sitting the examination in Dublin.  The Complainant confirmed that her PMDS rating was satisfactory. The Complainant confirmed when it came to light that she had attended the examination, she was told she could apply for a half day study leave for the day before the exam and a half day study leave for the day of the exam but would have to apply for a half day annual leave for the afternoon of the exam.  She applied for the study leave but did not apply for the annual leave.

3 Summary of Respondent’s case

Ms Guinness BL submitted that the Complainant alleges she made protected disclosures and has been penalised, the reality is that she took unauthorised leave which was only discovered when her manager received an ‘out of office’ to an email she sent. It is denied that the Complainant was penalised for any protected disclosure.  The Complainant received a contract of employment which confirmed that she is subject to civil service circulars and to the Legal Aid board Staff handbook which includes several policies in relation to leave. The decision to grant examination leave rests with the head of Department / Office and even if the course is not covered under the refund/advance of fees scheme that operates, there is discretion for the Head of Department / Office to grant some paid leave for exam purposes.

While the Complainant emailed her line manager to state she was taking annual leave on 17 February then working from home, she made no mention of the Irish Test on 18 February 2022. In the shared diary there was an entry “Irish test 2.15” but no indication of whether this was an online or in person test or how long it would last for.

The Complainant and her Manager discussed the issue at her PMDS meeting the following Monday 21 February 2022 and the Manager outlined that she should have applied through the study leave policy for leave to sit the examination. The Manager asked that she apply for study leave for half a day and annual leave for the other half in line with the Respondent’s policy, but the Complainant refused to apply for the half day annual leave. The Manager proceeded to flag the absence as an unauthorised absence. As a result of this the Complainant was referred to the disciplinary process for being absent.  The absence was also noted in the narrative of her PMDS. On 7 March 2022 the Complainant was informed that she was approved for a half day study leave on 17 February and a half day on 18th February the day of the exam, but as travel to and from the exam was not approved, she needed to apply for a half days annual leave on February 18. The Complainant replied stating the exam was in the morning and that she had returned home and had worked from 5.15pm to 6.30pm and therefore should not have to take annual leave.

 On 14 March 2022 the Manager contacted people Point and asked them to place her on nil pay for half of 18 February 2022. It is accepted that the Complainant attended a similar exam in August 2021 however, her Line Manager was not aware that she had attended the exam in person on that occasion.

On 1 April 2022, the Complainant was notified that there would be a deduction from her wages in respect of an unauthorised absence on 18 February 2022. The narrative on the PMDS and the deduction of wages were all solely related to the unauthorised absence.

4 Witnesses for the Respondent

Mr Field informed the Court that he was the assistant Director of HR at the Legal Aid Board. He stated that there are different types of leave and all must be applied for. Normally study leave should be applied for six weeks in advance. The Line Manager needs to approve the application for examination leave. As the Complainant had not applied for examination leave and she was not in work her manager was obliged to raise an unauthorised absence. In respect of the commentary on the PMDS this has no relevance.  The Complainants rating was satisfactory so would not impact eligibility to apply for promotion.

The Complainant had questions she wished to put to the witness in cross  examination; however, they were in respect of issues outside of his remit.

5 The applicable law

 Section 5 of the Act states:

(1) For the purposes of this Act “protected disclosure” means, subject to [subsections (6) and (7A)] 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, 8, 9 or 10.

(2) ………

(3) The following matters are relevant wrongdoings for the purposes of this Act—

(a) that an offence has been, is being or is likely to be committed,

(b) that a person has failed, is failing or is likely to fail to comply with any legal obligation, other than one arising under the worker's contract of employment or other contract whereby the worker undertakes to do or perform personally any work or services,

(c) that a miscarriage of justice has occurred, is occurring or is likely to occur,

(d) that the health or safety of any individual has been, is being or is likely to be endangered,

(e) that the environment has been, is being or is likely to be damaged,

(f) that an unlawful or otherwise improper use of funds or resources of a public body, or of other public money, has occurred, is occurring or is likely to occur,

(g) that an act or omission by or on behalf of a public body is oppressive, discriminatory or grossly negligent or constitutes gross mismanagement, or

(h) that information tending to show any matter falling within any of the preceding paragraphs has been, is being or is likely to be concealed or destroyed.

(4) ………

(5) ……..

(6) ………

(7) ……..

(8) In proceedings involving an issue as to whether a disclosure is a protected disclosure it shall be presumed, until the contrary is proved, that it is.

 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………

6 Discussion

The issue for the Court to determine is whether the Complainant was penalised for making a protected disclosure as defined by the Act. Section 5 (1) of the Act sets out that a protected disclosure is a disclosure of relevant information made by a worker in the manner specified in the Act. Section 5 (8) states “In proceedings involving an issue as to whether a disclosure is a protected disclosure it shall be presumed, until the contrary is proved, that it is.”

The Respondent submitted that the three issues identified by the Complainant did not disclose any wrongdoing and therefore did not qualify as protected disclosures.

The Court operating off the presumption set out in section 5 (8) of the Act that it was a protected disclosure, decided to first examine if there was a penalisation of the Complainant contrary to section 12 of the Act during the cognisable period. If penalisation was established the Court would then consider if it had been proven that the alleged acts were not protected disclosures.

The Complainant identified what she believed to be acts of penalisation during the cognisable period. The first being a deduction of a half day salary from her pay, the second being referred to the disciplinary process and the third being the comment on her PMDS form. The Respondent submitted that these issues were all linked to her unauthorised absence and opened to the Court various pieces of correspondence in support of that position.  While the Complainant disputed the absence was unauthorised, she did not dispute that the deduction, the referral to disciplinary and the comments on the PMDS all followed from and referred to that absence.  Having considered the submissions and the evidence before it, the Court determines that none of the alleged penalisations, deduction from pay, referral to disciplinary and comments on the PMDS would have occurred if the Complainant had complied with her line Managers request to apply for a half day annual leave for the day of the Irish exam.  On that basis the Court finds that the Complainant has failed to establish a causal link between the penalisations that she had identified that arose during the cognisable period and her presumed protected disclosure, and therefore her complaint must fail. 

For the reasons set out above the Court is satisfied that the Complainant was not penalised for making a protected disclosure. The Complainant’s appeal cannot succeed and is dismissed. The decision of the Adjudication officer is affirmed.

The Court so determines.

	Signed on behalf of the Labour Court
	Louise O’Donnell,
TH	______________________
5 January 2026	Deputy Chairman

NOTE

Enquiries concerning this Decision should be addressed to Ms Therese Hickey, Court Secretary.