CORRECTION ORDER
Issued pursuant to section 39 of the Organisation of Working Time Act 1997
Issued pursuant to section 88 of the Employment Equality Act 1998
Issued pursuant to section 41 of the Workplace Relations Act 2015
This Order corrects the original Decision ADJ - 00047657 issued on 08/05/2026 and should be read in conjunction with that Decision.
Parties:
| Complainant | Respondent |
Parties | Jacob Benarros Neto | Department Of Foreign Affairs |
Representatives | In person | Stephen O’Sullivan BL instructed by Ms Aideen O'Brien Chief State Solicitor's Office |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00058466-001 | 24/08/2023 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005 | CA-00058466-002 | 24/08/2023 |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00058466-003 | 24/08/2023 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 20(1) of the Industrial Relations (Amendment) Act, 2015 | CA-00058466-004 | 24/08/2023 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00058466-005 | 24/08/2023 |
Complaint seeking adjudication by the Workplace Relations Commission under Sick Leave Act 2022 | CA-00058466-006 | 24/08/2023 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00058466-007 | 24/08/2023 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00058466-008 | 24/08/2023 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00058466-009 | 24/08/2023 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00058466-010 | 24/08/2023 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00058466-011 | 24/08/2023 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 18A of the Organisation of Working Time Act, 1997 | CA-00058466-014 | 24/08/2023 |
Date of Adjudication Hearing: 26/09/2025
Workplace Relations Commission Adjudication Officer: Jim Dolan
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and/or Section 79 of the Employment Equality Acts, 1998 - 2015, following the referral of the complaint(s) to me by the Director General, I inquired into the complaint(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s).
Background:
The complainant is a civil servant and commenced employment on 30th July 2018. The complainant successfully applied for a position in the Department of Foreign Affairs and commenced employment in Foreign Affairs on 22nd November 2021.
This complaint was received by the Workplace Relations Commission on 24th August 2023. |
Summary of Complainant’s Case:
In the complainant’s own words: Preliminary Matters & Summary of Case
Background and Chronology of Key Events
The DFA manually altered the system and for me to restart probation under the same AO competencies. I disclosed my Amblyopia upon starting at the DFA and requested two large monitors, an accommodation which has been provided by PAS and DSP. DFA never provided.
March 2022: I met with HR Probationary Officer, disclosing increasing anxiety due to communication and work issues with the line manager and my medication to sleep and attend work. I requested a change of reporting manager. I asked the meeting to be private and in confidence, a Union representative was joined the meeting as observer. I explained that I wanted to avoid misunderstanding resulting in retaliation from the line manager. My line manager’s superior subsequently breached it and disclosed the details of this meeting to my line manager without telling me about it. The line manager became more critical of my work and marked down my first evaluation ‘unsatisfactory’. AP HR refused my request twice, citing a policy allegedly preventing changes during probation. However, an FOI revealed that more than 200 officers changed managers during probation. I was treated less favourably than my colleagues. 29 March 2022: My 3-month assessment was conducted (over one month late). I sent a follow-up email asking for clarification and proposing an improvement plan; it took over a month to receive a vague reply drafted by HR for the line manager.
June/July 2022: I took a certified sick leave due to stress and anxiety at work. 19 July 2022: My 6-month assessment was conducted late again. 'General conduct' was marked down without prior discussion. 8 Aug – 26 Aug 2022: My line manager took annual leave, approved by PO delaying the final assessment period.
5 Sept – 3 Oct 2022: I was on certified sick leave due to work-related stress/anxiety. 23 Sept 2022: While I was on sick leave, my line manager signed off my 9-month assessment. It recommended non-confirmation, again marking 'general conduct' down without prior discussion. That is contrary to NSSO and policies guidelines. October 2022: I received formal diagnoses for ADHD, GAD, and ASD. I informed that to HR and my line manager before our final probation meeting discussion. My line manager informed that her line manager who I had complained about harassment would be present. She had already signed off her recommendation in September. I requested a Union member to attend the meeting with me. HR notified me of her recommendation. Based on my recent diagnosis, I emailed HR requesting they extend my probationary period with reasonable accommodations. DFA refused it. In November 2022 : I gave notice of my intention to appeal the probation recommendation to DPENDR/CSAB. 22 November 2022: My statutory 12-month probation period expired. No decision to terminate or extend my probation had been communicated by the Secretary General by this date. By operation of law, I became established TS. Mr. xxx was nominated DAW Designated Person for the first time. He concluded my complaint did not meet the definition for investigation. I was unlawfully denied the right to appeal this decision. 25 November 2022: I submitted my appeal statement to DPENDR/CSAB, explicitly raising the preliminary matter that my probation had expired on 22 Nov 2022, rendering further process invalid, DFA and DPER never addressed it. After the line manager recommendation, I was transferred to the IUKA unit. HR informed senior managers it would be temporary, around 3 months. HR never informed me of it. Mr M was my new line manager. He enquired HR about treating me differently from my colleagues, not allowing me to blended work.
Dec 2022: NSSO notify me DFA had disallowed my annual increment due 15 of January 2023. I appealed the DFA's decision to freeze my increment due to sick leave under the Serious Illness Protocol; DFA indicated they would revert the decision, but the issue persisted until 2023( I was already in DSP). they reinstated the penalisation alleging ‘unsatisfactory’ PMDS End Review in 2022. Jan/Feb 2023: Issues arose with my PMDS 2022 End Review. AP HR (SK) instructed my new manager, Mr M to retrospectively mark my PMDS as 'unsatisfactory' based on contact with my former line manager (no longer at DFA), contrary to NSSO guidelines. Feb 2023 (2023 PMDS goals): HR instructed Mr. M ( new line manager) to state on my 2023 goals settings to note I failed my probation despite my appeal being pending]. HR complaint NN was not supposed to tell me about it. March 2023: I lodged a formal appeal via NSSO regarding the unsatisfactory PMDS 2022 review; the DFA never replied 3 March 2023: The CSAB hearing took place. I again raised the preliminary issue of my expired probation; the Board stated they were "still deliberating" but never addressed it in their findings. 6 April 2023: The CSAB issued its recommendation to revert me to the AO grade. DPENDR staff emailed the recommendation to parties but intentionally excluded me, breaching transparency policies. 12 April 2023: AP HR (Mr B) inappropriately disclosed the outcome of the Board. 24 April 2023: Date the Secretary General allegedly decided to follow the CSAB recommendation, five months after my probation legally expired. 26 April 2023: I was informed via email of the termination/reversion decision and told me to leave the premises by the same day. HR refused my request for a copy of the signed SecGen decision. I could not collect my personal belongings, exacerbating my GAD.
Legal Argument:
Discrimination Claims (CA-00058466-001)
Constructive Knowledge: From early 2022, DFA had constructive knowledge of disability based on my disclosure of anxiety, medication use, sick leave pattern (45 days in 2022), and request to change manager. DFA had a duty to inquire/accommodate per its own guidelines but failed to do it. Race/Nationality Discrimination: I was treated less favourably than Irish-born colleagues due to my Irish Brazilian background. * Manager's Comment: Line Manager stated I was "not suitable to represent our country at home or abroad," reflecting bias. Comparative Treatment: An Irish-born, neurodivergent colleague was in a materially similar situation (probation expired, negative manager recommendation), yet the Secretary General made her permanent. My case resulted in termination of employment at the DFA.
Procedural Flaws and Breach of Natural Justice (CA-00058466-013)
Assessment During Sick Leave: Crucial 9-month assessment recommending non-confirmation signed off 23 Sept 2022 while I was on certified sick leave (5 Sept – 3 Oct 2022). This denied me the opportunity to respond, breaching natural justice and NSSO guidelines requiring discussion before signing off probationary evaluations Lack of Feedback/Support: Assessments lacked constructive feedback or clear improvement plans. My line manager was often unavailable; only 13 working days overlap in the final assessment period due to her leave. My attempt to propose a plan was met with delay and insufficient response. Unsubstantiated "Conduct" Issues: "General conduct" marked down in 6-month (19 Jul 2022) and 9-month (23 Sept 2022) assessments without prior discussion, specifics, or warnings, breaching fair procedures Failure to Advise Employment at Risk: I was never clearly advised my employment was at risk, contrary to Probation Guidelines. Lack of Signed SecGen Decision: Unlike other cases [See Appendix: SecGen Signed Probations], DFA failed to provide the document signed by SecGen approving termination, despite my requests. HR stated to "lead the Secretary General" to terminate my employment. Dignity at Work (DAW) Process Flaws: My complaint (Sept 2022) against my line manager and her manager was handled improperly. Decision not to investigate issued 24 Nov 2022. I was unlawfully denied the right to appeal this decision
Penalisation Claims Health and Safety Penalisation (CA-00058466-002): I was penalised contrary to the Safety, Health & Welfare at Work Act 2005 for raising concerns about workplace stress and anxiety impacting my GAD. Penalisation included intimidation, refusal of accommodation, breach of confidentiality (HR disclosing meeting details and the Board’s recommendations to AG), negative assessments, and termination. DFA breached its duty of care (S.8). Equality Penalisation (CA-00058466-003): I was penalised contrary to the Employment Equality Acts for asserting equality rights (requesting accommodations, making DAW complaint). Terms of Employment Penalisation (CA-00058466-005): I was penalised for seeking clarity on my terms of employment, particularly regarding my expired probation status after 22 Nov 2022. Sick Leave Penalisation (CA-00058466-006): I was penalised contrary to the Sick Leave Act 2022 for taking certified, disability-related sick leave (45 days in 2022). This included using absences against me in assessments, counter appeal to the Board and freezing my annual increment. DFA refused my request for a meeting to discuss the policy. My appeal under the Serious Illness Protocol was acknowledged but the issue persisted. Other Penalisation/Victimisation: PMDS 2022: AP HR instructed my new line manager to retrospectively mark my End-of-Year PMDS as 'unsatisfactory', contacting my former line manager (no longer at DFA) for input, contrary to NSSO guidelines. My email inquiry and formal NSSO appeal received no reply. PMDS 2023Goals: Goals not set; HR instructed my line manager to assign only admin tasks and state probation failure, despite pending appeal. Inappropriate Disclosure: AP HR disclosed the Board recommendation and subsequently the termination of me employment outcome to another without valid business reason. Immediate Departure/Belongings: DFA demanded to leave premises by the same day. It prevented me to gather further evidence to this WRC case. I could not gather my personal belongings, causing me distress (GAD). DFA failed to return personal belongings despite requests Claims Against DPENDR (CA 00059287) DPENDR provided a service that discriminated against me and failed in its due diligence. DPENDR regulates civil service policy and is interconnected with CSAB (appoints/pays members, provides Secretary) Unlawful Process: DPENDR's initiation/handling of the Board organisation was fundamentally unlawful ab initio. My probation expiry (22 Nov 2022) extinguished the legal basis for any probationary appeal under the Civil Service Act/Guidelines. Guidelines invoked pertain to 'higher grade'; TS and AO are equivalent roles not a higher grade. Procedural Flaws: DPENDR intentionally excluded me from the final recommendation email (6 Apr 2023), breaching its own transparency policies. Liability: DPENDR is liable under the Equal Status Act (discriminatory service) and Employment Equality Acts (aiding discrimination). DFA may be vicariously liable for relying on this flawed process. Arguments Supporting Reinstatement as the Primary Remedy Legally Void Termination: The cornerstone argument is that the purported termination decision was ultra vires and void ab initio. As established in Whelan, I legally became an established Third Secretary on 22 November 2022. Reinstatement is the necessary legal consequence and recognition of my status as an established TS. The WRC can declare the void decision unlawful and order my return to the TS role I legally hold. Merit and Suitability: My appointment was based on merit (ranked 2nd PAS). My strong language skills are valuable assets for the unique, which was never assessed during my probation. Changed Circumstances at DFA: Key individuals involved in the discrimination/flaws are no longer employed at DFA. Their departure makes constructive reinstatement feasible. Established Officer Status & Security: As a previously established AO, the Civil Service Act provides enhanced job security but reversion is not an automatic consequence of an unlawful, ultra vires termination. Financial and Career Implications: The TS role offers distinct career progression and significant financial opportunities (overseas allowances potentially reaching AP level pay) unavailable in the AO grade. Reversion unlawfully denies me these opportunities.
Conclusion and Remedies Sought The termination of my employment was unlawful (ultra vires), void, discriminatory, and procedurally unjust. I became established in my role as Third Secretary on 22 November 2022 by operation of law. The DFA failed in its duties regarding reasonable accommodation and fair procedures. DPENDR facilitated a flawed and unlawful appeal process recommendation to DFA. 9.3. Given the ultra vires nature of the dismissal, my established status, merit-based appointment, suitability, and changed personnel circumstances, ordering DFA to allow my return as an established TS is the primary, appropriate, and legally mandated remedy.
I respectfully request the WRC grant the following remedies: Primarily: An order for my reinstatement as an established Third Secretary at the Department of Foreign Affairs, with reasonable accommodations for my disabilities. Alternatively, and additionally: A declaration that the termination decision was unlawful and void. Compensation for material and non-material damages, including injury to feelings and loss of opportunity (including potential loss of overseas allowances), among others. Any other remedies the Adjudication Officer deems just and appropriate. |
Summary of Respondent’s Case:
Introduction 1. The claimant commenced employment as a civil servant on 30/7/18 and continues employment as a civil servant. The claimant has worked in the following departments, with the following titles, to date i. 30/7/18 to 15/1/21: Executive Officer Data Protection Unit, Department of Social Protection (“DSP”). He would have passed an initial 12-month probation period in the role. ii. 15/1/21 to 22/11/21: Administrative Officer (AO) in the DSP. iii. From 22/11/21 to 21/5/23: Third Secretary on probation at the Department of Foreign Affairs (“DFA”). The claimant was appointed following an open competition. There is a 12-month probation period. iv. From 22/5/23 to date, the claimant reverted to his role at DSP (see point ii). 2. The role of Third Secretary is equivalent to the role of AO. It is on the same pay scale. The Third Secretary role is an entry level role into the Irish Diplomatic Service. There was no gain in earnings for the claimant in moving from the DSP to the DFA. There was no loss of earnings to the claimant from being moved from the DFA back to the DSP. 3. The claimant’s employment as a civil servant has been continuous since he commenced employment to date. There was no dismissal. 4. On 11/11/23 the claimant withdrew the UDA claim and chose to proceed with the discriminatory dismissal EEA claim instead. 5. The claimant made Data Subject Access Requests (“DSARS”) and Freedom of Information (“FOI”) requests to DPENDR. DPENDR states that those requests were complied with. Insofar as the claimant claims that DPENDR did not comply with DSAR or FOI requests, these are not matters for adjudication by the WRC but for other bodies such as the Information Commissioner or the Data Protection Commissioner. Further, DPENDR was not the employer at material times, so therefore the request to a third party such as DPENDR are not sufficiently relevant to this employment claim. 6. It is difficult for the respondents to defend this claim as the claims in the claim form are so broad and imprecise. The claimant recently sent multiple files to the WRC but no submission to give context. The claimant should enter a submission to the WRC with numbered paragraphs detailing the claims under each heading and particularising the claims better, exhibiting relevant documents in respect of that particular claim. Relevant policies
7. The Guidelines on the Management of Probation in the Civil Service (the Guidelines), governs inter alia the relevant procedure for the placement of a person on probation in circumstances when they are already an established civil servant Para. 56 therein allowed the DFA to refuse to confirm the claimant in the post:- “[Where] the civil servant has failed to satisfactorily fulfil the conditions of probation during the probationary period … a recommendation should be made to the appropriate authority that the officer’s appointment to the higher grade should not be confirmed. In these circumstances, the issue of reversion to the civil servant’s previous grade normally arises (subject to the statutory provisions regarding reversion)” Para. 68 provide that such a recommendation can be appealed to the Civil Service Appeals Board (“CSAB”) after which the appropriate authority makes a final decision in the matter:- “If it is decided by the line manager that the recommendation to the appropriate authority is that the civil servant should not be confirmed in the higher grade, the Human Resources Manager should inform the civil servant that he or she has the right to request the Civil Service Disciplinary Code Appeal Board to review the line manager’s recommendation. This review should take place before the line manager’s recommendation is sent to the appropriate authority for decision.” The claims against DPENDR ADJ-00048414; CA 00059287 8. For the record, the correct name of the respondent in ADJ-00048414 is the Department of Public Expenditure National Development Plan Delivery and Reform, hereinafter referred to as “DPENDR”. 9. The claims against DPENDR were lodged on 5/10/23. It would seem the claimant attempted to lodge the complaints in the incorrect format on before 29/9/23. DPENDR relies on the time limit of 6 months for the claims brought by the claimant. 10. DPENDR was not the claimant’s employer at any stage. The claimant did not have a contract of employment, express or implied, in writing or oral, with DPENDR at material times. 11. DPENDR did not provide goods and services to the claimant at material times in ways that are judiciable under the Equal Status claim. 12. The claimant impugns the conduct of the Civil Service Appeal Board (CSAB) in determining the appeal of his failed probation with the DFA. The CSAB operates independently from DPENDR. 13. The CSAB is a 3-person board made up of representatives from three panels. The first panel is made up of four independent Chairs (Barristers); the second panel is made up of four Employer representatives (current or retired Civil Servants) and the third panel is made up of 19 trade union representatives (from Fórsa or ACHPS). A board convened to hear a particular appeal draws on one member from each panel on rotation. All appointments to the CSAB, with the exception of the Board Secretary, are signed off by the Minister, DPENDR. The Secretary is responsible for the management of the work of the Board on the advice and instruction of the Chairperson of the Board. The Secretary is an employee of DPENDR and the work referred to includes administrative duties, including preparing/issuing papers submitted, arranging hearing dates. A separate member of DPENDR staff is assigned to take notes at each hearing (from a group of staff who are trained in notetaking). DPENDR denies all and any claims made against them and the claimant is put on full proof of his claim.
The claimant’s medical issues 14. The claimant did not raise his ADHD issue as part of the probation period process or in defence to the performance concerns, until 23/10/22. At this time, his Line Manger had already decided not to recommend him for confirmation in the role.
CA-00058466-001 EEA / Equal Status. Disability/Race Discrimination Access to employment/promotion/training/victimization/reasonable accommodation/ conditions of employment. 15. The claimant’s claims, when looking at the claim form, might be summarised as:- i. That he disclosed that he had eyes convergence insufficiency before starting with the DFA. He implies that the DFA should not have required him to attend the office under the Blended Working Policy given he had equipment at home and not in work. ii. That he asked for reasonable accommodations from the DFA on several occasions, including October 2022, and that they were not furnished. iii. That he disclosed mental health issues to the DFA, asked to change unit or manager and that the DFA refused this. iv. That, following a sick leave period in 2022, he was not supported in a phased return to work and that he was punished financially for taking sick leave. v. That he made a complaint under the Dignity of Work policy, to the DFA concerning harassment and discrimination based but that the designated officer decided not to allow his request to move to the investigation phase. vi. That the DFA unlawfully terminated his employment contract due to direct and indirect discrimination because of his race and disability. 16. The claimant only shared his ADHD diagnosis with the DFA in defence to the probation process after the claimant had completed his final probation assessment. 17. Insofar as Dr. Sean O’Domhnaill advised that the claimant had ADHD and required close support and clear direction in order to carry out his role, the claimant was given more than adequate support and direction during his probation. 18. The Equal Status Act cannot be invoked against the DFA who was the claimant’s employer at material times. 19. Insofar as the claimant claims that he was not furnished with reasonable accommodations, the claimant should particularise the following:- i. The disability relied on; ii. The reasonable accommodations that were needed in his time at the DFA in light of that disability; iii. Any requests made for such reasonable accommodation.
The claimant should exhibit documentation relied on for such a claim. Insofar as the claimant claims that he was not furnished with reasonable accommodation, the DFA denies this and puts the claimant on full proof.
CA-00058466-002 Penalisation under Safety, Health & Welfare at Work Act, 2005 20. The claim is specifically under the Safety, Health & Welfare at Work Act, 2005 but the narrative for the claim relies on various other pieces of whistleblowing type legislation. 21. The claimant should particularise: i. The complaint made as to health and safety; ii. The penalisation suffered as a result of that complaint. 22. Insofar as the claimant made a complaint as to health and safety at work, the DFA did not treat the claimant differently for having made such a complaint. 23. Insofar as the claimant claims that he was penalised under this ground, the DFA denies this and puts the claimant on full proof.
CA-00058466-003 EEA Victimisation on disability ground 24. The claimant should particularise:- i. The complaint made as to discrimination; ii. The victimisation suffered as a result of that complaint. 25. Insofar as the claimant made a complaint as to discrimination, the claimant was not treated adversely for having made such a complaint. 26. Insofar as the claimant claims that he was discriminated against under this ground, the DFA denies this and puts the claimant on full proof. CA-00058466-004 I have been penalised for invoking rights under the Industrial Relations (Amendment) Act, 2015 27. The claimant did not invoke rights under the Industrial Relations (Amendment) Act, 2015 before instituting the WRC claims. 28. Insofar as the claimant claims that he was penalised under this ground, the DFA denies this and puts the claimant on full proof.
CA-00058466-005 I was penalised or threatened with penalisation for giving evidence in any proceedings or giving notice of my intention of doing so under the Terms of Employment (Information) Act, 1994 29. The claimant did not give evidence or give notice of his intention of doing so under the Terms of Employment (Information) Act, 1994, before instituting the WRC claims. 30. Insofar as the claimant claims that he was penalised under this ground, the DFA denies this and puts the claimant on full proof. CA-00058466-006 I was penalised for having exercised my rights under the Sick Leave Act 2022 31. The claimant did not exercise his rights under the Sick Leave Act 2022 before instituting the WRC claims. 32. The sick pay that the claimant was furnished by the DFA was more generous than would be afforded under the Sick Leave Act 2022. 33. Insofar as the claimant claims that he was penalised under this ground, the DFA denies this and puts the claimant on full proof.
CA-00058466-007 Payment of Wages Act My employer has not paid me or has paid me less than the amount due to me 34. The claimant claims might be summarised as follows: - i. That he did not receive his annual wage increment in 2023. ii. That he was not paid notice in lieu of termination iii. That his annual wage increment was cut because he took 14 days uncertified leave 35. The DFA followed the rules concerning sick pay and increments at all material times.
CA-00058466—008 Terms of Employment My employer has applied a period of probation to my contract of employment in contravention of the Act 36. The primary designated remedy is 4 weeks earnings. Re-instatement or reengagement is not listed as a remedy. CA-00058466-009 Terms of employment My employer has not provided me with a reasoned reply to my request for employment with more predictable and secure working conditions within one month of mv request 37. The claimant did not make a request for employment with more predictable and secure working conditions. The DFA denies this and puts the claimant on full proof. CA-00058466-010 Terms of employment I was not notified in writing of a change to my terms of employment 38. There were no changes to the written terms of employment in respect of the relevant period. Insofar as there were such changes, they were notified to the claimant in writing. CA-00058466-011 Terms of employment My employer has not provided training to me free of cost in contravention of the Act or this training was not counted as working time and should have taken place during working hours 39. The claimant needs to particularise this claim.
CA – 00058466 – 012 – Unfair Dismissals Act.
40. This claim was withdrawn. CA-00058466-013 Industrial Relations Issues Bullying and Harassment Procedures 41. The claimant cannot take a claim against the DFA under this legislation. Section 23.1.a of the Industrial Relations Act 1990 excludes from the definition of worker “(a) a person who is employed by or under the State,”
CA-00058466-014 Hours of work I was not placed on the appropriate band of hours 1. At all material times, the claimant was a civil servant. He was paid a salary according to his grade and scale, rather than an hourly wage. The hours of work were full time and as provided for in his terms of employment. 2. The claimant did not ask to be placed on the appropriate band of hours.
Respondent’s second submission.
FOI requests
Responses to points made in CS1
“All appointees will serve a one-year probationary period. If an appointee who fails to satisfy the conditions of probation has been a serving civil servant immediately prior to their appointment from this competition, the issue of reversion will normally arise. In the event of reversion, an officer will return to a vacancy in their former grade in their former Department” Further the claimant agreed to a contract on those terms (see JBN3). See a copy of the competition documentation at JBN25
“The demands of the [Third Secretary] role, the responsibilities it extends and the standard expected of those who represent our country both at home and abroad...I am not satisfied that Jacob Benarros Neto has demonstrated the capability to operate effectively at this grade”. The comment was reasonable in the context that it pertains to the role of DFA Third Secretary which involves working in both in Ireland and to serve at embassies and consulates abroad, representing Ireland.
Probation reviews and PMDS
The PMDS end of year review for the claimant states inter alia “Despite his efforts, and despite significant training, support and direction, Jacob is not displaying the competencies required of his grade in this Unit, nor those that would be critical for a Third Secretary on posting.”
Dates of probation reviews.
29/3/22 - 3-month probation assessment completed 19/7/22– 6-month assessment completed on eProbation and meeting held 08/9/22 – 9 month review meeting scheduled, but doesn’t take place due to sick leave 23/9/22 – 9-month assessment completed on eProbation 24/10/22 – 9-month close out meeting took place The assessment 23/9/22 was completed before the claimant disclosed a disability relevant to mental health.
The email 24/3/23
On the first day of hearing before the WRC, the claimant contended that the Secretary General had decided to confirm him in his role with the DFA and later changed his mind. The claimant relied on a redacted email 24/3/23. The redacted email does not pertain to the claimant but pertains to a different employee, Ms M. Ms M’s situation was materially different because she was new to the civil service and she had not moved to the DFA from a different department. If the decision was made to fail her probation, her employment would have terminated, and she would not have reverted to a previous role in a different department, as the claimant did in this case. The case against DPENDR
Some points made by the claimant on the first day in the WRC
The claimant did not disclose a medical condition and did not ask for Reasonable Accommodation (RA) until after he failed the 9 months’ probation review i.e.. after 23/9/22
On 11/10/22 the claimant sent a medical cert from his GP (dated 27/7/22 but not furnished to the DFA until 11/10/22), saying that the claimant suffered from stress and that he would benefit from “an alternative working arrangement”. It did not specify a medical condition that amounts to a disability, and it did not say what change in working arrangement was required. On 17/10/22 the CMO assessed the claimant because of his absence on sick leave. The CMO informed the DFA “from a medical perspective, Mr Bernarros Neto has no pre-existing medical condition that accounts for his difficulties at work”
On 21/11/22 the CMO sent an update to DFA to say the claimant was first diagnosed with ADHD on 20/10/22. It stated inter alia “[The claimant] attended a psychiatrist on 20th October 2022 where he was diagnosed with attention deficit disorder and started treatment by means of medication on that day. He sees some benefit from this treatment. He has been in contact with the DLO to discuss his new diagnosis and they will be in touch with you with workplace accommodation requests.” Delay after 23/9/22
I. On 23/9/22 SF completed the 9-month probation review and recommended that the claimant not be confirmed in the DFA post. II. On 24/10/22 the claimant was informed verbally that he would not be confirmed in the post. There was delay between 23/9/22 and 24/10/22 mainly due to the claimant’s sickness absence and at the claimant’s request (see para. 20 herein). III. On 25/10/22, HR notified the claimant of the recommendation of his line manager not to confirm him in the grade of Third Secretary. The claimant was advised that if he wished to appeal this recommendation, he must notify the Secretary to the CSAB no later than 5 days from receipt of that email i.e.. 2/11/22 IV. On 1/11/22, the claimant notified CSAB of his intention to appeal. On 2/11/22, the CSAB advised him that he must submit his appeal statement by 4pm on 16/11/22. V. On or before 4/11/22, the CSAB extended the deadline to 25/11/22 on request from the claimant. VI. The CSAB hearing was scheduled for 9/2/23. The hearing was rescheduled for, and took place on 3/3/24 at the request of the claimant who required a hearing in person rather than remote. On 3/3/24 the CSAB allowed the claimant to submit further written documentation at his request VII. On 6/4/23 the CSAB issued its decision VIII. On 13/4/23 CSAB recommendation was sent to the Secretary General IX. On 26/4/23 the Secretary General issued his decision not to confirm the claimant in the grade of Third Secretary By reason of the foregoing, the claimant contributed to much of the delay in the period. |
Findings and Conclusions:
CA – 00058466 – 001 – a complaint seeking adjudication by The Workplace Relations Commission under section 77 of the Employment Equality Act, 1998. As per complaint form the complainant alleges that the Department of Foreign Affairs (DFA) when in April 2023, it terminated his employment and alleged unsatisfactory probation. The complainant goes onto allege that the DFA unlawfully terminated his employment contract due to direct and indirect discrimination because of his race and disability. The respondent made the following points at the hearing of the complaint: · The claimant’s claims, when looking at the claim form, might be summarised as:- i. That he disclosed that he had eyes convergence insufficiency before starting with the DFA. He implies that the DFA should not have required him to attend the office under the Blended Working Policy given he had equipment at home and not in work. ii. That he asked for reasonable accommodations from the DFA on several occasions, including October 2022, and that they were not furnished. iii. That he disclosed mental health issues to the DFA, asked to change unit or manager and that the DFA refused this. iv. That, following a sick leave period in 2022, he was not supported in a phased return to work and that he was punished financially for taking sick leave. v. That he made a complaint under the Dignity of Work policy, to the DFA concerning harassment and discrimination based but that the designated officer decided not to allow his request to move to the investigation phase. vi. That the DFA unlawfully terminated his employment contract due to direct and indirect discrimination because of his race and disability. · Theclaimantonlyshared hisADHDdiagnosis withtheDFAindefencetotheprobation process after the claimant had completed his final probation assessment. · Insofar as Dr. Sean advised that the claimant had ADHD and required close support and clear direction in order to carry out his role, the claimant was given more than adequate support and direction during his probation. · The Equal Status Act cannot be invoked against the DFA who was the claimant’s employer at material times. · Insofar as the claimant claims that he was not furnished with reasonable accommodations, the claimant should particularise the following:- I. The disability relied on. II. The reasonable accommodations that were needed in his time at the DFA in light of that disability. III. Any requests made for such reasonable accommodation.
The claimant should exhibit documentation relied on for such a claim. Insofar as the claimant claims that he was not furnished with reasonable accommodation, the DFA denies this and puts the claimant on full proof.
On 2nd September 2022, the complainant lodged a grievance with the respondent and requested that his grievance be progressed under the Civil Service Policy ‘A positive working environment’ and under section 7.7.1 which is the formal process laid out in the circular. I have read the five page report from the Designated Person (Colum Hatchell) and would now complement him for a job well done. His report is very professionally put together. In relation to the complainant being discriminated against there is a need on every complaint to prove a prima facie case before the burden of proof moves to the respondent. In the instant case the complainant has not shown that he has a prima facie case. This complaint is not well founded.
CA – 00058466 – 002. – A complaint submitted under s.28 of the Safety, Health and Welfare at Work Act, 2005. The complaint is specifically under the Safety, Health and Welfare at Work Act,2005 but the narrative for the claim relies on various other pieces of whistleblowing type of legislation. The complainant has failed to particularise:
Insofar as the complainant made a complaint as to discrimination, the complainant was not treated adversely for having made such a complaint.
This complaint is not well founded.
CA – 00058466 – 003. - A complaint submitted under Employment Equality Act
The complainant has not provided any particulars of the complaint and has also not provided no particulars relating to the victimization suffered because of this complaint. The Respondent has claimed that there was no discrimination. I can only find that this complaint is not well found.
CA – 00058466 – 004. – The complainant contends that he has been penalized for invoking rights under the Industrial Relations (Amendment) Act, 2015.
The complainant did not invoke rights under the Industrial Relations (Amendment) Act 2015. The Industrial Relations (Amendment) Act, 2015 can be described as follows: 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.
This complaint is not well-founded.
CA – 00058466 – 005. The complainant contends that he was penalized or threatened with penalization for giving evidence in any proceedings or giving notice of his intention of doing so under the Terms of Employment (Information) Act, 1994. The respondent has replied that the complainant did not give evidence or give notice of his intention of doing so under the Terms of Employment (Information) Act, 1994, before instituting the WRC claims. I have checked the complainant’s claim form and also his submission and cannot find anything to support this claim. This complaint is not well founded.
CA – 00058466 – 006. “I was penalized for having exercised my rights under the Sick Leave Act 2022”. · The claimant did not exercise his rights under the Sick Leave Act 2022 before instituting the WRC claims. · The sick pay that the claimant was furnished by the DFA was more generous than would be afforded under the Sick Leave Act 2022. · Insofar as the claimant claims that he was penalised under this ground, the DFA denies this and puts the claimant on full proof.
The sick pay paid to the complainant during periods of absence were greater that what would have been paid to him under statutory sick pay legislation. This complaint is not well founded.
CA-00058466-007 Payment of Wages Act My employer has not paid me or has paid me less than the amount due to me The claimant claims might be summarised as follows: - · That he did not receive his annual wage increment in 2023. · That he was not paid notice in lieu of termination · That his annual wage increment was cut because he took 14 days uncertified leave The DFA followed the rules concerning sick pay and increments at all material times. If this is correct there is no case to be answered. This complaint is not well founded.
CA-00058466—008 Terms of Employment My employer has applied a period of probation to my contract of employment in contravention of the Act The complainant has referenced the case of Whelan v. Minister for Transport 2023 IEHC 586.
In a rare case of its kind – and the first judgment of a superior court in which new rules on probation under the 2022 Regulations on Transparent and Predictable Working Conditions played a prominent part – Mr Justice Simons ruled that the Minister for Transport did not have the power to revoke the appointment of Jason Whelan to the position of principal officer in the Department, after his 12-month probation ended.
Civil servants do not need a “positive” decision confirming appointment. The 2022 Regulations, which belatedly transposed the Directive on Transparent Predictable Working Conditions, now provide that the maximum probation period a public/civil servant endures is 12 months. There is no statutory discretion to extend this limit. (In the private sector, the general maximum is now six months, but exceptions are permitted). The new decision in Whelan v Minister for Transport also confirms that established civil servants do not need a “positive” decision confirming their appointment (i.e. promotion) at the end of their probation; rather such an appointment is confirmed upon the expiry of a probation period, if it is not terminated before the end of the probation period.
BACKGROUND
Mr Jason Whelan, a member of the Association of Higher Civil and Public Servants (AHCPS), was appointed as a principal officer in the Department, effective 13 December 2021, having been an assistant principal officer before then. He was told the period of probation (“acting capacity”) was for a period “of not more than one year.” He also signed a form of acceptance stating he “shall not be finally appointed as principal officer unless [he has] proved satisfactory during the acting period …” Mr Whelan had passed his earlier probation reviews, but for his nine-month review, his line manager said he had not met the principal officer standard. Mr Whelan then sought an extension to his probation to, as the judge put it, “prove his competence”. His request was granted by an official in the Department – not by the Minister – with a new probation end date of 9 January 2023 (beyond 13 December 2022). However, on 10 January, Mr Whelan was informed that officials were to recommend to the Minister he be reverted back to assistant principal. He invoked his right to use the Civil Service Appeals Board, a non-statutory process where the board can make a recommendation to the Minister. The Board concluded in May 2023 that Mr Whelan be granted a six-month extension to his probation. However, Simons J pointed out that the Board “mistakenly” concluded that an extension of probation beyond 12 months was permissible. Notwithstanding, the Minister rejected the extension of the probation, stating “as a matter of law [the] probationary period cannot exceed a period of 12 months”. This decision was communicated to Mr Whelan via letter of 13 July, with the worker then bringing a High Court challenge.
CEASED TO BE PRECARIOUS Judge Simons looked at the purported extension of Mr Whelan’s probation in October 2022, which was granted by a Department official, not the Minister. The judge noted that it was surprising that the official issued the letter agreeing to the extension of Mr Whelan’s probation where it appeared from contemporaneous internal communications that the Department officials “were aware that only the Minister could extend the probationary period.” But because the new rules as set out in the 2022 Regulations, amending the 1994 Terms of Employment (Information) Act, provide that a public servant cannot have a probation period exceeding 12 months, had the Minister accepted the recommendation of the Appeal Board it would have been incorrect to do so. The new maximum limits on probationary periods came into effect on 16 December 2022. Mr Whelan began his probation as principal officer on 13 December 2021, therefore his probation expired, at the very latest, on 16 December 2022 – and on that date his appointment “ceased to be precarious.”
NO CONFIRMATION NEEDED
While it is only the Minister who can make a decision on terminating a principal officer’s acting appointment, the decision has to be made during the probation period, and the termination of the appointment has to be made prior to the expiration of the probationary period. This, the judge noted, follows “both a literal and a purposive interpretation of Section 7 of the Civil Service Regulation Act 1956.” The purpose of the probationary period is to allow the appropriate authority a reasonable time during which to assess performance “whilst ensuring that the civil servant is not subject to ‘prolonged insecurity’ (to borrow the language of the Working Conditions Directive)”, the judge said.
“The logic being that the appointment is only precarious until such time as the probationary period has expired. It is not necessary that there be a positive decision to ‘confirm’ the appointment. Rather, the appointment takes effect upon the expiration of the probationary period (unless, of course, the appointment has previously been terminated.)”
NOT TRUE TO OWN LOGIC
As a result, Mr Whelan’s appointment as principal officer in the Department “took full effect from, at the very latest, 16 December 2022.” However, the Minister “some seven months later […] purported to terminate the appointment and to direct that [Whelan] revert to the grade of assistant principal officer.”
The decision-letter of 13 July 2023 “is not true to its own logic. Having acknowledged that the probationary period cannot exceed twelve months, the decision-letter fails to recognise that the inevitable consequence of this is that the probationary period had expired in December 2022.”
Once the probation period passed, the Minister no longer had the power to revoke the appointment. The decision to revert Mr Whelan back to assistant principal was, therefore, unlawful.
In the instant complaint and applying the thinking of Mr Justice Simons we can conclude that the Complainant commenced in the Department of Foreign Affairs on 22nd November 2021 (as per letter of offer). The one year probationary period therefore expired on 21st November 2022.
The complainant became a permanent employee in the Department of Foreign Affairs on 22nd December 2022.
There is much I could add to what I have already stated but feel there is no need. The complaint as presented by the complainant is well founded.
The complainant has stated the following:
“My primary remedy sought is reinstatement to my established position as Third Secretary. This is justified by the ultra vires nature of the termination of my employment at the DFA, my merit-based appointment (ranking 2nd in the PAS competition), my suitability for the role and the fact that key personnel involved in the flawed process are no longer employed at the DFA. I also seek compensation for material and non-material damages”. Section 7 of the Act, section 7(2) (d) reads as follows: In relation to a complaint of a contravention under section 3, 4, 5, 6, 6D, 6E, 6F, or 6G and without prejudice to any order made under paragraph (e) order the employer to pay to the employee compensation of such amount (if any) as the adjudication officer considers just and equitable having regard to all the circumstances , but not exceeding 4 weeks remuneration in respect of the employee’s employment calculated in accordance with regulations under section 17 of the Unfair Dismissals Act 1977. I now order the respondent to pay compensation to the complainant in the amount of 4 weeks’ pay, such sum to be paid within 42 days from the date of this decision. In relation to re-instatement to the position in the Department of Foreign Affairs I do not have jurisdiction under this Act to order such re-instatement. CA-00058466-009 Terms of employment My employer has not provided me with a reasoned reply to my request for employment with more predictable and secure working conditions within one month of mv request I accept the respondents position in that the complainant did not make such a request. This complaint is not well founded. CA-00058466-010 Terms of employment I was not notified in writing of a change to my terms of employment There were no changes to the written terms of employment in respect of the relevant period. Insofar as there were such changes, they were notified to the claimant in writing.
This complaint is not well founded.
CA-00058466-011 Terms of employment My employer has not provided training to me free of cost in contravention of the Act or this training was not counted as working time and should have taken place during working hours The claimant needs to particularise this claim. There were no particulars provided at the hearing. This complaint is not well founded.
CA – 00058466 – 012 – Unfair Dismissals Act.
This complaint was withdrawn. CA-00058466-013 Industrial Relations Issues Bullying and Harassment Procedures The claimant cannot take a claim against the DFA under this legislation. Section 23.1.a of the Industrial Relations Act 1990 excludes from the definition of worker “(a) a person who is employed by or under the State,” This complaint is not well found.
CA-00058466-014 Hours of work I was not placed on the appropriate band of hours At all material times, the claimant was a civil servant. He was paid a salary according to his grade and scale, rather than an hourly wage. The hours of work were full time and as provided for in his terms of employment.
This complaint is not well founded.
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Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.
Section 25 of the Equal Status Acts, 2000 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 27 of that Act.
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.
As outlined above. |
Dated: 12-06-26
Workplace Relations Commission Adjudication Officer: Jim Dolan
Key Words:
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