ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00004925
Parties:
| Complainant | Respondent |
Parties | A Public Servant | A Government Department |
Complaint for Adjudication
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-00006899-001 | 09/09/2016 |
Date of Adjudication Hearing: 20/02/2017
Workplace Relations Commission Adjudication Officer: Rosaleen Glackin
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and 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 has been employed by the Respondent since 5th February 1979. He is paid €2138.06 gross per fortnight and he works 41 hours a week. The Complainant referred a complaint to the Workplace Relations Commission on 9th September 2016 under Schedule 2 of the Protected Disclosures Act, 2014, alleging that he had been penalised by the Respondent – he alleged that he has been isolated in the workplace and suspended without reason – he had not received appropriate technical duties – he had received no training and opportunities for promotion have not been made available to him. The Complainant was attending training at a specified location on 4th and 5th May 2011 with his named Line Manager. The Complainant stated that he observed some issues of concern by the named Company they were overseeing. The Complainant communicated his observations verbally to his Line Manager on the day. The Complainant stated he was not satisfied with his Line Manager’s response and he repeated his observations by email to his Line Manager on 10th May 2011 and copied this to the named Inspector and to his HR Department. This the Complainant asserted was a revealed wrongdoing for the purposes of Section 5(3)(b) of the Protected Disclosures Act, 2014 “that a person has failed, is failing or is likely to fail to comply with any legal obligation” The Complainant was suspended from duty on 22nd July 2011 on foot of complaints made. A named independent investigator was appointed to carry out the investigation into the six allegations made by the Respondent against the Complainant and that report was completed in September 2012. That Report found that four of the allegations were deemed to be well founded. Likewise a fifth allegation was also deemed to be well founded and the report concluded in relation to the sixth allegation, that of verbal aggression, was not one sided. The evidence was that prior to the Investigation Report being issued the Complainant lodged a complaint with the Personal Injuries Board in 2012 and the Complainant remained suspended until January 2014 following discussions between the Parties. During this period Disciplinary proceedings had been put on hold to allow the discussions to proceed. There was no resolution. The Complainant was advised on 28th May 2014 that the Respondent, having considered the Investigators Report were not to initiate any further Disciplinary action and the Complainant was transferred to his current location effective from June 2014. A preliminary Hearing into the Complaint of 9th September 20216 was adjourned to enable both the Respondent and the Complainant to address, by way of submission, two preliminary issues identified by the Adjudication Officer – time limits with due regard to decisions of the High Court and the personal injuries claim by the Complainant which the legal representative confirmed at the hearing was based on the same grounds as the complaint to the WRC and the relevant case law relevant to this issue. Both Parties did make written submissions and these were exchanged between the Parties. The Hearing resumed on 20th February 2017. A number of Preliminary Legal issues were addressed by both Parties at this Hearing. |
Preliminary Issue – Time Limits
`Section 1 (6) to 1(8) of Schedule 2 of the 2014 Act provides as follows – “(6) Subject to subparagraphs (7) and (8), a rights commissioner shall not entertain a complaint under this paragraph if it is presented after the end of the period of 6 months beginning on the date of the contravention to which the complaint relates. (7) Notwithstanding subparagraph (6), a rights commissioner may entertain a complaint under this paragraph presented after the end of the period referred to in subparagraph (6), but not later than 6 months after the end of that period, if satisfied that the failure to present the complaint within that period was due to exceptional circumstances. (8) Where a delay by an employee in presenting a complaint under this paragraph is due to any misrepresentation by the employer, subparagraph (6) shall be construed as if the reference to the date of the contravention were a reference to the date on which the misrepresentation came to the employee’s notice”.
The Complainant or his Legal Representatives did not raise any argument in relation to Section 1 (7) or (8).
This complaint was received by the WRC on 9th September 2016. Both Parties confirmed at the Hearing that the Complainant has been on certified sick leave effective from 7th April 2016. Therefore the period covered by this complaint is from 10th March 2016 to 7th April 2016.
Preliminary Issue - High Court Proceedings.
The Legal Representative of the Complainant confirmed at the Hearing of 20th February 2017 that the High Court proceedings had been withdrawn and evidence was provided to this effect dated 14th February 2017
Conclusions
Section 5(5) of the Act of 2014.
Section 12(1) of the Act provides as follows – “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 making a protected disclosure.”
This protection provided by Section 12 (1) is afforded to an employee who has made a protected disclosure within the meaning of the Act. Section 5 defines a protected disclosure as follows: 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.”
Section 5(5) provides as follows – “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 an employer”
The evidence from both Parties was that it was the responsibility of the Complainant and other workers of the Respondent to attend at specified locations at which other parties were carrying out specified functions and it was the responsibility of the Complainant and the other workers of the Respondent attending at specified locations where this activity was being carried out, to detect, investigate and if necessary prosecute but the alleged protected disclosure did not involve any act or omission on the part of the employer. The evidence from the Complainant was that on 4th and 5th May 2011 he observed other bodies, not the employer, doing something which he then brought to the attention of his Employer on 10th May 2011.
This issue was addressed by the Labour Court in its Decision in Donegal County Council v Carr 1/2016.
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 view of my conclusions above with specific reference to Section 5 (5) of the Act of 2014 and In accordance with Section 41(5) of the Workplace Relations Act, 2015 I declare there has been no Protected Disclosure within the meaning of the Act made in this case. Therefore I decide that the complaint is not well founded. |
Dated: 19 May 2017
Workplace Relations Commission Adjudication Officer: Rosaleen Glackin