ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00040258
Parties:
| Complainant | Respondent |
Anonymised Parties | A teacher | A school |
Representatives | In person | Ms Cathy McGrady BL instructed by Mr Lorcan Maule, Mason Hayes and Curran Solicitors. |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Schedule 2 of the Protected Disclosures Act, 2014 | CA-00051728-001 | 18/07/2022 |
Date of Adjudication Hearing: 23/04/2024
Workplace Relations Commission Adjudication Officer: Jim Dolan
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
Background:
The complainant is a teacher at the respondent school. Employment commenced on 24th August 2018 and is ongoing. This complaint was received by the Workplace Relations Commission on 18th July 2022.
It should be noted that the parties agreed to the Adjudication Officer deciding the complaints ‘on the papers. Several attempts were made to hear the complaint in person; this was not successful.
Due to the exceptionally large number of documents submitted (circa 6000 pages) the decision has taken much longer than normal to complete and for this delay I apologise and thank the parties for their patience. |
Summary of Complainant’s Case:
The complainant’s specific complaint reads as follows (as submitted on complaint form submitted to the Workplace Relations Commission on 18th July 2022): During the course of my employment, I have brought a number of wrongdoings to the attention of my employer, and I have been penalised as a result. The wrongdoings to which I refer are in respect of the actions of my employer and/or staff employed by my employer and include inter alia, a failure by my employer to protect employee Dignity at Work, a failure by my employer to follow correct procedures, policies and a failure to apply the principles of natural justice, a failure by my employer to accept or acknowledge a report regarding the safety of a child attending the school, a failure to investigate the said report regarding the safety a failure to investigate of that child, a failure to investigate and/or acknowledge and/or act on issues reported regarding health and safety in the school, a failure to investigate and/or acknowledge and/ or act regarding breaches of GDPR, a failure to investigate and/or acknowledge and/or act on reports of threatening behaviour, a failure to implement appropriate supervision and substitution to protect employees health and safety, a failure to protect employees against bullying and harassment in the workplace. Since I made the disclosures outlined above, I have been penalised on several occasions, the most recent of which denied me the right of appeal on 28th January 2022. By letter dated 12th September 2023 the complainant outlines his complaint as follows:
Extract from complainant’s submission on protected disclosures. It is at this point that I would like to request that our Adjudicator increase the time limit for consideration from 6 months to 12 calendar months for this case, as is within their power to do, under “reasonable cause” for the delay. Throughout this whole dreadful experience, I have acted with professional integrity and trust in the professional integrity of others, adhering to advice given to me and progressing through each stage, as it was presented to me. As I look back over my case however, I see that the actions/inactions taken by others have seriously impinged upon my rights, amongst these being my right to legal protection. My Board of Management have taken an unfairly protracted amount of time, in dealing with my case. In every instance where timelines existed, they have pushed out to the final day possible for their response. Further, where clear timelines did not exist, instead of an expectation to progress “as quickly as possible” existing, an unfair amount of time was taken, and this time has now, if our Adjudicator does not address it by allowing the scope for consideration to be extended to 12 months, been allowed to directly impinge upon my legal rights, and allows me to be victimised. I first lodged my “Dignity at Work Complaint” 23rd March 2020. My final presentation to the Board of Management was not allowed to take place until April 2022 (approx.). My Appeal Hearing was not until 9th November 2021 – I received invitation to meet on the 4th October 2021 – with the earliest date on offer being the 6/7/8/12th October, which were too short notice for me. Due to delays from my (redacted) IRO availability to advise, the hearing did not happen until 9th November, with the report being issued on 18th November. I was then given a “written only” option to present to the Board of Management, with the closing date being December 6th (3 weeks). Upon submission of my written presentation to the Board of Management, I outlined how my rights had been impinged upon as per our Dignity at Work, procedures document, I was given the option of addressing the Board in mid-April 2022 (a further 4-month delay). Within 60 days of this meetings/hearings finding I had employed a legal team and due to the existing, then timeline, had until July to lodge my appeal, as the activities of September to December were already outside of my 6-month window. If the Adjudicator would take the delay of not having my appeal looked at in September 2021 (1 month); adds the month lost in October 2021 due to planning issues in getting the meeting set up (I am including the mid-term break here also) (1 month); Adds the unreasonable delay of February/March/April 2022 (3 months including Christmas Mid Term/ St Patricks Day/Bank Holidays), I got Covid, the total time delay, beyond my control tally runs to at approx. 5 months. If these 5 months are then subtracted from my timeline, that would then reasonable move (all things being equal) my date of complaint to the Workplace Relations Commission to sometime in February. All things being equal then, delays that were beyond my control being removed, that puts the actions and activities of my first interview, for the 1st AP1 position, 17th September 2021, well within the 6-month scope of my investigation. Furthermore, as my case outlines, there has been, I believe, a continuous and clear move against me in my place off work in the run up to these vital interviews (central to my school’s future). Actions, (active and inactive), and statements from those outlined in my complaint, show how a clear animus exists towards me. While my second appeal ended in January of the year of my complaint, within the 6 month expressly allowed time-limit for the scope of this case – I argue that in fact February was the end point of a protracted singular recruitment event – one where clear breaches to my rights occurred, and I ask that this court see the three events as one, as each event had a clear and definite bearing on the next. If my rights were protected and my protected discloses investigated in the first instances and procedure followed without bias, the landscape of September 2021 and June 2022 would have been very different. My now Principal could not have interviewed me due to a clear conflict of interest. If my complaint against him, containing several protected disclosures, had been validated he would not have been deemed suitable, for reasons of character, to occupy the position of Principal or any other management post in a CEIST school. As such my appeals would never have occurred. That is not to say I believe I would have been given a fair opportunity in these interviews. I believe that due to the existence of a clear bias and animus against me, I would not have, but that is to say process, procedure and due diligence would have been, and as such my work place made in some way safer and legitimate by it. I ask that February 2022, where the appointment of (name redacted) to (title redacted) occurred be considered as the end of the first round of a highly controversial and inappropriate recruitment process – a process whose illegitimacy, I reiterated in my closing statement to the Board of Management in March of 2021. Up until their final decision, even at that late stage, the Board could have addressed matters, instead they failed in their duty to the members of their school community. Finally, I would ask that our Adjudicator takes into account the seriousness of the breaches of my rights in this period between September 2021 and December 2021. There are serious breaches of the Articles of Management for a Catholic school by my Board of Management; Serious breaches by my Patron by not ensuring the Board and then Acting Principal were acting in accordance with the Education Act 1998; Articles of Management amongst others; breaches in my rights to a fair interview, without bias (suggested or actual); the ignoring of protected disclosures; and all of these when combined causing me very serious penalisation and prejudice. I believe, if my Board, then Acting Principal; Patron had performed their roles as legally tasked, I would not be here before you today, but the reality is that they didn’t as a result serious laws were broken and a cascade of decisions and promotions were made on a non-legally sound even illegal basis and foundation. This is a further Protected Disclosure that I make to this Court. To recognise this, I believe, is to force a “reset” on the whole promotions’ activities of my school. The promotions that have occurred are, by the breaches in practices and procedures, akin to being as legally binding as a signature on a contract of sale for the Eiffel Tower, written by a conman (I used this work as this event, as with the “Golden Gate Bridge” actually occurred). Furthermore, I would like it noted that I would like the “Appeal Hearing Report” against my “Investigation Report” stricken out and removed from consideration as it, as a process, was not contained in my school’s Dignity at Work policy document at the time when I lodged my Dignity at Work Complaint. Its existence is misleading, (especially when you consider that it not a review of evidence, but instead a very limited area of procedure), is prejudicial to my case and adds a validation to the “facts” of my investigation that I refute, by virtue of its misleading title – it is preventative of natural justice, and as it is not an appeal in a very real way. Without its existence, I believe that the Board of Management in their deliberation would have had no option but to seek a new investigation by an unbiased (whether implied or actual) agreed upon investigator, armed now with clear evidence.
The complainant’s submission. Part of the written submission from the complainant included a booklet of what he believed to be his protected disclosures. I have read the booklet and address the points made in my Findings and Conclusions. |
Summary of Respondent’s Case:
BACKGROUND
a. an alleged failure by his employer to protect employee’s dignity at work; b. an alleged failure by his employer to accept or acknowledge a report regarding the safety of a child; c. an alleged failure to investigate the said report regarding the safety of the child; d. an alleged failure to investigate and/or acknowledge and/or act on issues reported regarding health and safety in the school; e. an alleged failure to investigate and/or acknowledge and/or act on issues regarding breaches of GDPR; f. an alleged failure to investigate and/or acknowledge and/or act on reports of threatening behaviours; g. an alleged failure to implement appropriate supervision and substitution, to protect employee’s health and safety; h. an alleged failure to protect employees against bullying and harassment in the workplace.
LEGAL SUBMISSION
The Protected Disclosures Act provides at Section 5 as follows:
5. (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) For the purposes of this Act information is “relevant information” if— (a) in the reasonable belief of the worker, it tends to show one or more relevant wrongdoings, and (b) it came to the attention of the worker in connection with the worker’s employment. (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.
In the case of Irish Prison Service v Noel McGree1 (Appendix 7), the Labour Court set out the requirements to determine a complaint of penalisation as follows:
In order to determine a complaint of penalisation under the Protected Disclosures Act 2014 it must first be established that a protected disclosure had been made and in the within matte it is common case that the Complainant made a protected disclosure within the meaning of the Act on 7thMarch 2016.
In order for the Complainant to succeed in his complainant under the Act, the Court must decide if the Complainant was penalised for having made such a protected disclosure. The provisions of the Act regarding penalisation are broadly similar to those provided in the Safety Health and Welfare Act, 2005 (the Act of 2005). As this Court pointed out in a decision made under that Act in O’Neill v Toni and Guy Blackrock Limited [2010] E.L.R. 21, it is clear from the language of Section 27 of the Act of 2005 that in order to make out a complaint of penalisation, it is necessary for a complainant to establish that the detriment of which he or she complains was imposed “for” having committed one of the acts protected by Section 27(3) of the Act of 2005. 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, 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 detriment. The principles enunciated in that decision can be applied to the within complaint under the Act. Thus, the Complainant in the within matter is under the burden of establishing that any detriment which he alleges amounts to unlawful penalisation under the Act, occurred because he had made a protected disclosure. In essence, that the detriment would not have occurred but for a protected disclosure having been made.
a. The Complainant was not denied a right of appeal. In accordance with the said letter of 28th January 2022, it is abundantly clear that he was afforded a right of appeal against the result of a competition to fill an Assistant principal 1 position 1, and he did so lodge an appeal, which he failed to progress; b. The Appeal Board Secretariat is separate to and entirely independent of the Respondent and included a representative of the Complainant’s trade union, who wrote the letter referred to; c. The Complainant failed to furnish an appeal form to the Appeal Board Secretariat by the date required or at all. d. Due to the Complainant’s said failure, the Appeal Board Secretariat could not process the Complainant’s appeal. This was not a decision of the Respondent who was merely informed of the Appeal Board Secretariat’s decision.
Firstly, it is not clear that it was a detriment at all in the circumstances. Given his failure to pursue his appeal, it could be assumed that the Complainant did not wish to do so. In addition, the decision not to process the appeal was not a decision of the Respondent, but rather was the decision of a third-party body, with no knowledge of the complaint made by the Complainant in relation to substitution and supervision or any complaint. Furthermore, it is clear that the operative reason for the third-party body’s decision that it could not process the Complainant’s appeal, was the Complainant’s failure to lodge the required appeal form. This was the sole reason for the Appeal Board’s decision. It simply cannot be said that but for Complainant making a protected disclosure, the appeal would have been processed. This could not have occurred without the Complainant lodging the necessary form.
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Findings and Conclusions:
The complainant has submitted a complaint under Schedule 2 of the Protected Disclosures Act 2014. What is a Protected Disclosure? Making a ‘protected disclosure’ is sometimes called ‘whistleblowing or ‘reporting wrongdoing in the workplace’. A protected disclosure is a disclosure by a worker of information about a relevant wrongdoing which they became aware of in a work-related context. The Protected Disclosures Act provides certain protections to those who make protected disclosures. You can make a protected disclosure if you are a “worker” and you disclose relevant information in a particular way. Information is relevant if it came to your attention in connection with your work and you reasonably believe that it shows “relevant wrongdoing”. Relevant wrongdoings *might be* any of the following: · Criminal offences · Failure to comply with a legal obligation (other than your contract of employment) · Miscarriage of justice · Endangerment of health and safety · Damage to the environment · Unlawful or improper use of public funds · Oppressive, discriminatory or behaviour or behaviour that constitutes gross mismanagement by a public body · Breaches of EU law · Concealing or destroying evidence of wrongdoing
Relevant wrongdoings are usually *not* any of the following: · Exclusively personal workplace grievances · Disputes with your employers in relation to your contracts · When it is your job to uncover the wrongdoing, for example a police officer investigating a crime or an environmental officer inspecting an oil spill · When the information is disclosed in a legally privileged setting. The complainant has provided an extremely large volume of papers to the Workplace Relations Commission (circa, 6000 pages). I note that the complaint was received on 18th July 2022. Section 41 (6) of the Workplace Relations Act 2015 reads as follows: (6) Subject to subsection (8), an adjudication officer shall not entertain a dispute referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates. (8) An adjudication officer may entertain a complaint or a dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) ( but not later than 6 months after such expiration ), as the case may be, if he or she is satisfied that that the failure to present the complaint or refer the dispute within that period was due to reasonable cause. In the instant complaint I am satisfied that the complainant utilised the services of his trade union and his solicitor. Having been assisted by professionals I see no reason why the time allowed to present a complaint to the Workplace Relations Commission should be extended beyond 6 months. The cognisable period therefore is the period from 19th January 2022 until 18th July 2022. Events happening before 19th January 2022 and after 18th July 2022 will not be considered. Schedule 2 (9) of the Protected Disclosures Act states the following: A complaint shall be presented by giving notice of it in writing to a rights Commissioner and the notice shall contain particulars and be in such form as may be specified from time to time by the Minister for Jobs, Enterprise and Innovation. In one of his submission booklets the complainant has listed what he contends are Protected Disclosures that he has made. These are as follows:
Any disclosures made during academic years 2016 – 2017, 2017 – 2018, 2018 – 2019, 2019 – 2020, 2020 – 2021 were made before the commencement of the cognisable period for this complaint and therefore cannot be considered as part of this complaint. Any disclosures being made during academic years 2022 – 2023 and 2023 – 2024 were made after the cognisable period for this complaint and cannot be considered as part of this complaint. The only time that can be considered i.e. the cognisable period is the period from 19th January 2022 until 18th July 2022. In academic year 2021 – 2022 the complainant made 35 alleged protected disclosures. In his submission booklet the complainant refers to these alleged protected disclosures as Issue Reference Numbers 6.1 to 6.11. The complainant appears to have a writing style that is not easily understood, to the best of my ability I understand these to be as follows: 6.1 Timetable interference continues. 6.2 Unfair advantage for career progression. 6.3 17th September 2021 – interviewed for 1st AP1 position. The complainant appears to be unhappy about the entire interview process. 6.4 Due process was not followed – ‘Gerrymandering of opportunity’. Again, this relates to interview opportunities and how interviews were held for the Principal position whilst the complainant was still in the process of appealing his application for the AP1 position. 6.5 Unfair process – Principal and Deputy Principal roles are filled. The complainant applied for neither role as his appeal was outstanding. 6.6 The complainant applied for a new AP1 position and was interviewed for same. The complaint that the complainant has is that he believes the candidate coming second in the last competition should have been appointed. 6.7 Alleged protected disclosure relates to the creation of a second staff room for teachers during the Covid pandemic. The complainant was left in staffroom 2 and he believes this to be an act of penalisation. 6.8 This complaint relates to the complainant being told that if he wishes to reply to an investigation report he must do so in writing – there would be no face-to-face meetings to discuss. 6.9 Scripted Verbal Appeal Documentn15th March 2022. The complainant states the following: C.1 (a) I opened my presentation to the Board, clearly stating how I am still being bullied and points in my complaint were still active – Protected Disclosures of my initial ‘Dignity at Work’ document were still active – “I want to speak at this, the final stage of the internal process, to specific complex points of me being bullied in the workplace – and I am still being bullied. I have included further points that were included in my complaint and are still active”: C.1(b) In her own words the principal, launders the truth in this report. I go on to present evidence, that what the former Principal has said about work I have done for the school is untrue and has deeply impacted any opportunity I had for being accredited for work that I had done for the school; (please see ‘verbal submission’ document for an outline of evidence supplied under Drumcondra testing/CAT4 testing/Student Council. Amongst other things the evidence shows how, while the events were historic, I was having duties taken from me, disadvantaged and unfairly treated in a way that would reasonably negatively impact any chance I had/have at competency-based interview. C.1(c) My Guided Academic Attainment Programme or GAAP is a further important piece. Here (pages 3&4 of my verbal submission) I outline several Protected Disclosures – which are still active in my place of work to this day. I show how I have been: denied credit for work I have done; my dignity at work has been majorly impacted ; how I have been clearly punished for a Protected Disclosure; How a then colleague, not Deputy Principal and my then Principal conspired to mislead me, prevent acknowledgement for work I have done; How my idea for our school’s assessment for learning document was hijacked by an unknown colleague (the application of which was given to other colleagues who have benefitted from it in interview); Effort was taken to conceal and destroy any sign of its existence – even to the point where after the above hearing, in August 2022 all files date and time stamps on our school website were again altered, again with no mention of my GAAP document or the current envisioning of it. I outline how this Protected Disclosure was still active, beyond the scope of the investigators. C.1(d) I outline how my complaint against the now Principal was not being dealt with by the Board of Management and how the Inspector misinterpreted how my complaint was not followed up on, advised upon or investigated. Also how this Protected Disclosure was still active, beyond the scope of the investigators.
C.1(e) I outline how one of the most typical areas of bullying of teachers is timetabling. I explain how Timetabling interference has worsened over the years, in correlation to my Protected Disclosure perhaps worst of all, after I made my Dignity at Work complaint. I explain how the now Principal Co-authored my timetable, and how this Protected Disclosure was still active, beyond the scope of the investigators. Furthermore, I explain how I tried to get a copy of my timetables going back to 2014 from my current Principal, and he supplied me with copies only going back to 2018 – saying ‘vsware’ only held copies of our timetables going back to 2018. I rang vsware for clarification and was informed they had copies of my timetables going back to 2016 – I explained how this protected disclosure speaks to how attempts were being made to conceal the level of victimisation I have received. I have since tried to get a copy of my conversation with vsware, which is on file, but they will not supply it to me, only my employer – I have included emails to this effect. 6.10 Child Protection issues e.g. bullying . 6.11 Hiring of an individual to investigate and deliver feedback.
Items 6.1 to 6.11 are alleged to have happened in Academic Year 2021 – 2022. Only a portion of that academic year falls within the cognisable period for this complaint. Section Schedule 2 (9) of the Protected Disclosures Act states the following: A complaint shall be presented by giving notice of it in writing to a rights commissioner and the notice shall contain particulars and be in such form as may be specified from time to time by the Minister for Jobs, Enterprise and Innovation. The complainant has not provided any dates for this complaint other than Academic Year 2021 -2022. This being the case and having no way to tell if it refers to a point within the cognisable period, I have no jurisdiction to hear the complaint. It should be noted that had I the jurisdiction to hear the complaint I would have concluded that the subject matter of the complaint is a personal grievance and therefore is not a protected disclosure. When one looks at and considers points 6.1 through to 6.11 it is clear that these are all personal grievances and therefore are not protected disclosures. In conclusion I find that the complaint as presented to the Workplace Relations Commission is not well-found. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
In conclusion I find that the complaint as presented to the Workplace Relations Commission is not well-found. |
Dated: 30th March 2026.
Workplace Relations Commission Adjudication Officer: Jim Dolan
Key Words:
Protected Disclosures Act 2014. |