PDD161

This is an appeal by a Worker (the Appellant) against a decision of an Adjudication Officer / Rights Commissioner on a claim brought by him on 17^thNovember 2014 against his employer Donegal County Council (the Respondent) under the Protected Disclosures Act, 2015 (the Act). The Adjudication Officer / Equality Officer did not uphold the complaint.

The Appellant was employed by the Respondent from March 1985 and continues in employment. At all material times he occupied the post of Station Officer in the Retained Fire Service.

The Case

The Appellant contends that he made six separate disclosures to his line managers in the Retained Fire Service. Four disclosures are described by the Appellant in his submission as complaints to service management as regards the alleged behaviour of firefighters in the station in which the Appellant was the Station Officer. One disclosure was in the manner of a reply by the Appellant to a question from a manager as regards a work payment claim. The final disclosure was a complaint by the Appellant as regards the fitness of two firefighters to carry out their duties by reason of physical capacity issues. The Appellant contended to the Court that the complaints made by him to management of the service constituted protected disclosures within the meaning of the Act.

The Appellant further contended that the management of the service omitted to respond appropriately to his complaints and that he suffered a detriment in the form of undermining of his position as a manager, tension at the fire station and insubordination. This omission was contended to be a penalisation of the Appellant within the meaning of the Act.

The Respondent contended that no valid protected disclosure within the meaning of the Act had been made by the Appellant and if such a disclosure had been made no penalty or detriment within the meaning of the Act was suffered by the Appellant.

Discussion

The jurisdiction of the Court under the Act as regards the matters arising in this case relates, in accordance with Schedule 2 of the Act, to the protection afforded by Section 12(1) of the Act to those who make protected disclosure.

Section 12(1) of the Act provides as follows

• 12. (1) An employer shall not penalise or threaten penalisation against an employee, or cause or permit any other person to penalise or threaten penalisation against an employee, for having made a protected disclosure.

The Act defines a protected disclosure at Section 5 as follows:

Protected disclosures

• 5. (1) For the purposes of this Act “protected disclosure” means, subject to subsection (6) 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 .

• (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—

• (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,

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

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

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

  (4) For the purposes of subsection (3) it is immaterial whether a relevant wrongdoing occurred, occurs or would occur in the State or elsewhere and whether the law applying to it is that of the State or that of any other country or territory.

  (5) A matter is not a relevant wrongdoing if it is a matter which it is the function of the worker or the worker’s employer to detect, investigate or prosecute and does not consist of or involve an act or omission on the part of the employer.

  (6) A disclosure of information in respect of which a claim to legal professional privilege could be maintained in legal proceedings is not a protected disclosure if it is made by a person to whom the information was disclosed in the course of obtaining legal advice.

  (7) The motivation for making a disclosure is irrelevant to whether or not it is a protected disclosure.

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

It is common case that the Appellant was at all material times a Station Officer in the Retained Fire Service. The Appellant, through his representative, asserted to the Court that he had made the disclosures comprising the matters at the base of the within case by way of complaints to his managers in the service in the discharge of his role as a Manager / Supervisor of firefighters. Indeed one complaint made by the Appellant was made on a standard form drawn up for the purpose of reporting issues within the Fire service.

There can be no doubt that the complaints made by the Appellant to his managers within the Service were made by him pursuant to the discharge of his duties as a Station Officer. All of the complaints alleged to be protected disclosures were made by him to the management of the service.

A Protected Disclosure as defined by the Act at Section 5 is a disclosure of relevant information. The Act at Section 2 clarifies that 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.

• (5) A matter is not a relevant wrongdoing if it is a matter which it is the function of the worker or the worker’s employer to detect, investigate or prosecute and does not consist of or involve an act or omission on the part of the employer.

The Court, in light of its finding outlined above, is not required to consider whether a penalisation within the meaning of the Act has occurred.

Determination

The Court determines that no Protected Disclosure within the meaning of the Act has been made in the within case. In those circumstances and for the reasons set out above the Court determines that the Appeal fails and the decision of the Rights Commissioner / Adjudication Officer is affirmed.

Signed on behalf of the Labour Court



Kevin Foley
LS______________________
7 June 2016Deputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Louise Shally, Court Secretary.