Complainant

Respondent

Anonymised Parties

A teacher

A school

Representatives

In person.

Ms Cathy McGrady BL instructed by Mr Lorcan Maule, Mason Hayes and Curran.

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 20(1) of the Industrial Relations (Amendment) Act, 2015

CA-00054554-001

18/01/2023

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

CA-00054554-002

18/01/2023

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 January 2023.

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 very 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.

CA – 00054554 – 001.

In the complainant’s own words as per the complaint form:

On 12th January 2023, my principal began disciplinary proceedings against me as per circular 0049/2018. I currently have a case before the WRC under penalisation for making protected disclosures against my employer. This act by my Principal , contravenes my right against the ; (d) imposition or the administering of any discipline, reprimand  or other penalty (including a financial penalty), (e) coercion or intimidation. I ask that this complaint be heard at the same time as ADJ – 40258 – 40256, as it clearly relates to them. I further ask that (if applicable) that this aspect of my case be heard under the new Protected Disclosure Act guidelines 2023.

CA – 00054554 – 002.

The complainant has described his complaint as follows (in his own words):

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 wrong doings 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 such a report regarding the safety 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. acknowledge and/or act on reports of threatening behaviour, a failure to implement appropriate supervision and substitution, to protect employee’s health and safety, a failure to protect employees against bullying and harassment in the workplace. Since I made the disclosures and began my complaint against my employer with the WRC for the above outlined I have been penalised on several occasions, most recently denial of promotion. Disciplinary proceedings begun against me on 12.01.23.

BACKGROUND

·        The Complainant commenced employment with the Respondent on or about 24 August 2014 as a teacher.

·        The Complainant claims that during the course of his employment, he brought a number of wrongdoings to the attention of his employer, in respect of the actions of his employer and/or staff employed by his employer, as follows:

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.

·        The Complainant has failed to provide any details of the alleged matters or that they constitute relevant wrongdoings and/or how/when it is alleged that they were disclosed to the Respondent, and the Complainant is placed on full proof thereof.

·        Without prejudice to the foregoing and in an effort to put potentially relevant matters before the Adjudication Officer, it is acknowledged that on or about 22 March 2021, the Complainant made a Dignity in the Workplace Complaint against the former Principal. It is further acknowledged that the said complaint contained a matter that could come within 4(g) above.

·        The said complaint, among others, was fully investigated by (redacted), who furnished his report on 7 June 2021. He concluded therein that the Complainant’s complaint regarding supervision and substitution was unfounded. The Complainant’s overall complaint of bullying and intimidation was found to be unsubstantiated and unsustainable. The Complainant’s subsequent appeal was not upheld.

·        The Complainant further alleges on his complaint form that since he made the alleged disclosures outlined above, he has been penalised on several occasions, the most recent of which denied him a right of appeal on 28 January 2022.

·        The Respondent denies penalisation on ‘several occasions’ and is unaware of what the Complainant refers to in this regard.

·        It is however within the Respondent’s knowledge that by letter dated 28 January 2022, the Respondent, was advised by way of a letter that the Appeal Board Secretariat, could not process an appeal lodged by the Complainant against the result of a competition to fill an Assistant Principal 1 position in (name of school redacted). It was specified in the letter that this was because the Appeal Board Secretariat had not received an appeal form from the Appellant and the appeal date of 17th December had long since passed.

·        The Complainant was informed by the Respondent in a detailed letter dated 8 December 2021 on the procedures how to appeal the decision of the competition to fill an Assistant Principal 1 position. It is further submitted that the Complainant had previously appealed a prior Assistant Principal 1 position and was familiar with the procedures and strict timeframe that was required.

·        The Appeal Board referred to in the letter of 28 January 2022 had been established pursuant to Circular 0003/2018 and consisted of a nominee of the Complainant’s trade union, a nominee of the management body and an independent chairperson and was entirely independent of the Respondent.

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.

·        It is submitted accordingly, that the Complainant must establish in the first instance that he made a Protected Disclosure within the meaning of the Act and he is placed on full proof thereof.

·        As confirmed by the Labour Court on many occasions, including in the Irish Prison Service case mentioned above, the Complainant must also show that he suffered a detriment, which constituted unlawful penalisation within the meaning of the Act, and that the detriment would not have occurred but for the protected disclosure having been made.

·        As appears from the communication of 28 January 2022, relied upon by the Complainant as penalisation, it is important to note the following:

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.

·        It is submitted that this could not amount to an unlawful penalisation under the Act.

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.

·        It is submitted that the Complainant’s claim is without foundation and should be dismissed.

CA – 00054554 – 001.   Complaint seeking adjudication by the Workplace Relations Commission under Section 20(1) of the Industrial Relations (Amendment) Act, 2015.

The Industrial Relations (Amendment) Act, 2015 – An Act to make further and better provision for promoting harmonious relations between workers and employers and, in particular, to make provision for a system of registered employment agreements and sectoral employment orders ; to amend and extend  the Industrial Relations (Amendment) Act 2001; to amend and extend the Industrial Relations (Miscellaneous Provisions) Act 2004; to provide for certain interim relief for certain persons in respect of actions taken by them in relation to investigations of trade disputes and, for that purpose , to amend the Unfair Dismissals Act 1977; to amend the Workplace Relations Act 2015 and certain other enactments ; and to provide for related matters.

It should be noted that Chapter 3 of the Industrial Relations (Amendment) Act, 2015 deals with the subject of Sectoral Employment Orders.

Section 20 of the Act (part of Chapter 3)  reads as follows:

Prohibition on penalisation of worker by employer.

20. (1) An employer shall not penalise or threaten penalisation of a worker for –

(a) invoking any right conferred on him or her by this Chapter

(b) making a complaint to the Workplace Relations Commission that a provision of this Chapter has been contravened, or

(c) giving notice of his or her intention to do either of the matters referred to in paragraph (a) or (b).

There is no registered employment agreements and/or sectoral employment orders in existence between the teaching unions and the Department of Education and Skills that apply to school teachers.

This complaint is not well founded.

CA – 00054554 – 002    Complaint seeking adjudication by the Workplace Relations Commission under Schedule 2 of the Protected Disclosures Act, 2014.

I find that the complaints contained within this complaint are duplicates of the complaints contained within  ADJ – 00040258. This complaint is not well found.

The complaints as presented are not well founded.