ADJ-00001721

ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00001721

Act

Complaint Reference No.

Date of Receipt

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

CA-00002403-001

5th February 2016

Date of Adjudication Hearing: 21st October 2016

Workplace Relations Commission Adjudication Officer: Kevin Baneham

Location of Hearing: Dublin

Procedure:

On the 5th February 2016, the complainant referred a complaint pursuant to the Protected Disclosures Act to the Workplace Relations Commission. The complaint was referred to adjudication on the 21st October 2016. The complainant is a senior official of a local authority and the respondent is the local authority. The complainant attended the adjudication and made oral and written submissions in support of his claim. The respondent was represented by Waters & Associates solicitors and the complainant’s line manager and the head of HR attended as witnesses.

In accordance with Section 41 of the Workplace Relations Act, following the referral of the complaint to me by the Director General of the Workplace Relations Commission, 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 longstanding senior official of the respondent, a local authority. The claim is made pursuant to the Protected Disclosures Act and the complainant asserts that he has been subjected to penalisation for making protected disclosures regarding issues arising in the course of his employment. The respondent denies the claim of penalisation and asserts that the complainant has not been the subject of adverse treatment.

Summary of Complainant’s Case:

The complainant is a senior and longstanding official of the respondent local authority. His employment commenced on the 14th July 1975 and he is a Grade 8. Between 2007 and 2011, the complainant represented the respondent on the board of directors of a limited company that operated a high profile sporting project in the area of the respondent. The majority shareholding was held by a named property developer. The limited company operating the sporting project went into liquidation in 2011 and the project then ended. The complainant raised issues relating to actions of the respondent at the time the sporting venture faced financial difficulties. The complainant alleged that the respondent had made disguised payments and that there had been accounting irregularities relating to the expenditure of Council monies. The complainant outlined that he had difficulties with the respondent’s then Chief Executive Officer. The respondent initiated disciplinary action against the complainant, but the complainant said that he was exonerated by the Labour Court following his Industrial Relations complaint. The acts raised in the disciplinary action were acts that the complainant had done in his capacity as director of the limited company responsible for the sporting project.

This complaint relates to disclosures made by the complainant in relation to the financial exposure of the respondent to the sporting venture and regarding the veracity of statements made by or on behalf of the respondent to members of the Oireachtas, the media and other parties. The acts of disclosure are a letter addressed to the respondent CEO of the 30th May 2014 and other contemporaneous correspondence and a further letter to a Government Minister of the 23rd March 2015.

The complainant outlined that a new Chief Executive Officer was appointed to the respondent in March 2014. The complainant wrote to him on the 14th April 2014 to raise issues regarding the respondent’s involvement in and around of the time of the sporting venture’s difficulties. He then submitted a detailed report on the subject on the 30th May 2014. After the Protected Disclosures Act was enacted on the 1st July 2014, the complainant wrote to the respondent to ask that the May submission be treated as a protected disclosure. This was acknowledged by the respondent. In 2014, the respondent had arranged for an investigation to be carried out by a retired Chief Executive Officer of a different local authority. The complainant submits that this investigation did not address the substance of the issues raised by him and its focus was instead on the matters arising in the disciplinary process. In January 2015, the Chief Executive Officer summonsed the complainant to a meeting and informed him that the report had concluded that there was nothing to investigate. In March 2015, the complainant wrote to the relevant Minister raising detailed concerns and made this communication as a disclosure under the ambit of the Protected Disclosures Act.

The complainant asserts that he has been subjected to penalisation as a result of the protected disclosures he made. The penalisation includes the transfer of the complainant from the head of a local department to a role in a reduced section of a central function. This was effectively a demotion. He has had no dealings with the Chief Executive Officer and this was different to the CEO’s interaction with other senior officials where his management style was hands-on. He had met the Chief Executive Officer on two occasions: one in January 2015 and a second time in January 2016. On his latter occasion, the Chief Executive Officer rang him on the 7th January 2016 to ask the complainant to a meeting. At the meeting, the complainant was informed that he was being transferred role. The complainant acknowledged that it was within the remit of the Chief Executive Officer to transfer him and that there were other transfers at this time. The complainant said that the role to which he was transferred was unreasonable and an act of penalisation. The new role was in a section of the Planning Department and it consisted of one-sixth of what he, as a Grade 8, should manage. In this new role, he reported to the Director of Services and the next most senior staff was a Grade 5 and a Grade 6, then on sick leave. The new role was in the planning control section. The office had been weakened by the removal of a planner to another section. The complainant outlined while derelict sites had now been added to his responsibilities, planning control and derelict sites were low activity functions. He referred to the annual service indicators contained in the respondent’s annual report, which illustrate the low level of activity of these functions. He now managed six members of staff, while in a previous operations role he had managed a staff of 82 and a budget of €10 to €15 million. This operations role was also high profile, where he reported directly to the relevant Area Committee. He had worked in the operations role for four years and this was preceded by 12 years in the Community department. His new role was similar to a Senior Staff Officer role he had carried out some 20 years previously. It was obvious to all that he had been demoted and this was particularly acute because the respondent was so busy. His colleagues faced a challenging workload while he had little to do in a ‘non-job’. His demotion was common knowledge in the organisation. It was open for the respondent to transfer him to an equivalent role to the roles he had performed as a Grade 8. The complainant acknowledged that he was receiving the same remuneration in the new role.

The complainant also raised his isolation in the workplace and breaches of confidentiality. The breaches of confidentiality include the fact that a colleague was able to tell the complainant of the internal investigation commissioned by the new CEO of the respondent in 2014 and carried out by the retired CEO. At a Christmas event, a colleague also said that they knew of his forthcoming meeting with the CEO. This represented a breach of confidentiality. The complainant referred to the respondent’s Protected Disclosures policy and its emphasis on the confidentiality of matters raised relating to a disclosure.

In reply to the respondent, the complainant said that he had referred to the earlier Rights Commissioner hearing as the respondent had not taken the opportunity to refute his charge that it had provided false evidence in those proceedings. Commenting on the investigation carried out by the retired CEO, the complainant outlined that he was not so much dissatisfied with the findings of the investigation, but at the way the investigation did not adequately address the issues. He said that the investigator had never spoken to him. The complainant outlined that the respondent had not adequately addressed the contents of the protected disclosures and focussed instead on the disciplinary issue, which had been completed some years before. He outlined that the protected disclosures do not relate to the now closed disciplinary matter. The complainant submitted that he had established a link between the protected disclosures and the transfer.

In respect of confidentiality, the complainant outlined that the CEO should have assigned the matter of investigating his complaints to an independent arbitrator so as to ensure confidentiality. He commented that the respondent did not take seriously its responsibilities under the Protected Disclosures Act and it was not irrelevant that the respondent’s policy was defective. He gave the example of the person named as recipient for such disclosures no longer worked for the respondent. This blasé attitude was reflected in the respondent’s approach to penalisation. The complainant outlined that the transfer represented a change to his terms and conditions of his employment because of the reduction in the role. He stated that the Line Manager had been placed in an unfortunate position.

Summary of Respondent’s Case:

In legal submissions, the respondent outlined that there was sparse case law in relation to penalisation under the Protected Disclosures Act. It referred to McGrath Partnership v Monaghan PDD162, where the Labour Court held that the “but for” test was applicable to penalisation claims, requiring a causal link and proximity between the disclosure and the act of penalisation.

The respondent referred to the disciplinary hearing and appeal which took place in March 2011. Following the industrial relations complaint made to the Labour Relations Commission, the Rights Commissioner reduced the sanction but did not overturn the finding. Following the complainant’s appeal, the Labour Court concluded that the complainant as an employee of the respondent had to abide by instructions of the respondent. In respect of the letter of the 14th April 2014 and other letters, they are letters of grievance from the complainant that refer to past grievances and past events. It was submitted that in September 2014 the CEO of the respondent had accepted this letter as a protected disclosure from the complainant. In the letter of the 19th January 2015, the CEO also acknowledged that the complainant was entitled to make a disclosure to the relevant Minister.

It was submitted that there had been an intermingling of issues between the prior grievance issues, the issues raised during the disciplinary process and the contents of the disclosures. The respondent referred to the letter from the CEO of the 23rd March 2015, which stated that there was no issue in the complainant going to the Minister and that the complainant could also refer any grievances to the Labour Relations Commission. The correspondence also accepts the importance of confidentiality, but states that as the matter relates to his office, it would not open for him to decide the matter, and nor could a more junior member of staff. It was further submitted that the confidentiality issue does not form part of the claim of penalisation.

The respondent referred to the definition of “penalisation” contained in section 3 of the Protected Disclosures Act and the need to point to detriment incurred by the worker. It was submitted that the new role given to the complainant was an appropriate one and was given to him following the appointment of the Line Manager to her role. The Line Manager reported directly to the CEO. The complainant was one of 32 senior executive officers.

The Line Manager gave evidence. She addressed the matter of her comments to the complainant immediately following her appointment to the role. She said that she had heard about comments attributed to the complainant, and made in the canteen, where he had said that he had not had to turn on his computer for two years. At their meeting, the Line Manager said to the complainant that she expected the new role to be busy and asked him to raise any issues with her. She outlined that the roles had been changed in expectation of growing demand, in particular as the increase in the number of planning applications would lead to greater demand for planning enforcement. She wished to have a proactive role in planning enforcement, with inspectors working on the ground. It had been felt that there was a disconnect between the work of the planners and what was happening on the ground. She stated that the function had been delegated to the complainant.

The Line Manager outlined that there were eight Senior Executive Officers reporting to her. Their role was to prepare the contents of reports sent to the CEO. In respect of planning enforcement, this was a slow process and involved liaison with Councillors, including at the SPC. It was also a statutory role and included in the respondent’s Strategic Plan. The Line Manager said that each of the eight SEOs had the same status. She said that prior to this role, she had a budget of €180 million, but she now had a reduced budget in the planning department. While another SEO had a greater number of reports than the complainant, this colleague was responsible for the Development Plan, the processing of planning applications and general administration. This person also had more delegated powers. The Line Manager outlined that the complainant was included in all SEO meetings, including the quarterly meetings between the SEOs and the CEO. The Line Manager said she had discussed with the complainant about developing his role and that it was important to have an SEO in this role as this post worked with an equivalent in the area planning team. She commented that the transfer of the planner had been a success. She outlined that she had assigned powers relating to derelict sites to the complainant as part of an ongoing land activation drive on the part of the respondent. She said that all eight SEO roles were equivalent and she did not agree that the complainant’s transfer had represented a demotion.

In cross-examination, it was put to the Line Manager that in their meeting of the 19th January 2016 she had referred to there being a “clean slate”. He commented that this had made him concerned; she replied that she had made this comment because while she was aware the complainant had raised issues regarding his role, she had no direct knowledge of them. The complainant outlined that planning enforcement was not a busy area and that it was difficult to increase the department’s output without more inspection staff. He said that it was not part of the SEO’s role to carry out inspections and despite this, the Line Manager had requested the complainant to examine a named derelict site. The complainant outlined that while a large part of the CEO report includes SEO inputs, he suggested that the CEO would have referred to the complainant’s appointment to the role if the role was intended to be proactive one. It was put to the Line Manager that the complainant had lost five of the six functions that had been part of the role and that, as a result, the eight SEO roles were not equivalent. In reply, the Line Manager commented that there were queries from Councillors regarding derelict sites and that the respondent had a duty to address signs of dereliction in the county, even without engaging the legal process.

The respondent submitted that there had not been a demotion. The complainant had been assigned to an appropriate role and one that required the SEO to take a proactive approach and to create work. The issue to be determined was whether this represented an act of penalisation. It was submitted that there had been no downgrading of the role; it had been a transfer. It was submitted that the breach of confidentiality issue was one to be addressed elsewhere. The complainant and the Line Manager had a normal working relationship.

The respondent acknowledged that the complainant had transferred to a new role. There had, however, been no demotion and no detriment incurred by the complainant. It had been envisaged that the role would grow and it was one where it was required to have an SEO in place, even if the complainant was disheartened. There had been an ongoing issue since 2010 and while the complainant had been focussed on this since that time, the matter had come to an end in early 2015. It was now for the complainant to progress his disclosure with the Minister. It was submitted that the transfer was nothing to do with the disclosure made to the Minister. The transfer had been a normal action and in the course of the respondent’s reallocation of functions. There was no causal nexus between the transfer and the protected disclosures. The respondent did not accept that the complainant had been isolated and that he was treated in the same way as other SEOs by the CEO. The complainant had a good relationship with the Line Manager. It was further submitted that the CEO, as a new senior manager in the respondent, would not be in the “firing line” for any of the issues raised by the complainant, so what motivation could the CEO have to penalise him.

In respect of the previous LRC case, the respondent outlined that the complainant had not challenged the veracity of anything stated to the Rights Commissioner. The matter was later appealed to the Labour Court. The respondent submitted that the complainant raised issues with the respondent CEO in April and May 2014. It was submitted that if the respondent CEO did not do what was expected, this would be reversed by the Minister. This was not an issue for this adjudication and not a matter of penalisation. The respondent pointed to the second paragraph of the letter of the 14th April 2014 and its reference to the failure to process previous grievances to link this with past grievances. It further submitted that there was no link between the transfer and penalisation. In respect of the breaches in confidentiality, the respondent submitted that there was an industrial relations process in place to address this. It denied that it had a blasé approach to protected disclosures or to penalisation. It was submitted that the complainant’s terms and conditions of employment had remained the same, even if he was not happy with the role. There was a difference between the complainant and the Line Manager regarding the substance and potential of the new role.

The respondent concluded that while the complainant had been transferred to a new role, there had been no act of penalisation, including any demotion or any isolation. There was no causal link between the transfer and the complainant’s protected disclosures and that the within claim should fail. In reply to the complainant, it added that the LRC hearings took place in 2011 and 2012, and the transfer took place in January 2016.

Findings and Conclusions:

The first thing to note in this case is that the complainant is a longstanding official of the respondent, having started his employment there in 1975. The recent economic crash had a particular effect on the work of local authorities, for example strained services following the public service embargo. The complainant was on the front line of events relating to a high profile sporting venture, in particular when it encountered difficulties relating to the economic crash. The sporting venture was later wound up. The complainant raised concerns regarding the conduct of the respondent at this time and remains dissatisfied with how these issues have been addressed.

Section 5 of the Protected Disclosures Act provides the following definition of a protected disclosure:

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 .
(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.
…

(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.

The respondent does not dispute that the matters raised by the complainant fall within the ambit of section 5(3) of the Act. They relate to allegations of the failure to comply with a legal obligation and the improper use of funds. The acts of disclosure are letters to the CEO of the 30th May 2014 and other correspondence prior to this report and the letter to a Government Minister, dated the 23rd March 2015. The respondent does not accept the substance of the disclosures. It goes without saying that my role is not to look into, or make findings upon, the matters raised by the complainant in the disclosures. My role is to determine whether the complainant has been subjected to penalisation for having made the disclosures.

Section 3 of the Protected Disclosures Act provides for the following definition of penalisation:

“penalisation” means any act or omission that affects a worker to the worker’s detriment, and in particular includes—
(a) suspension, lay-off or dismissal,
(b) demotion or loss of opportunity for promotion,
(c) transfer of duties, change of location of place of work, reduction in wages or change in working hours,
(d) the imposition or administering of any discipline, reprimand or other penalty (including a financial penalty),
(e) unfair treatment,
(f) coercion, intimidation or harassment,
(g) discrimination, disadvantage or unfair treatment,
(h) injury, damage or loss, and
(i) threat of reprisal.

The complainant asserts that he was penalised in being transferred to a “non-job” and that this is, in effect, a demotion. He acknowledges that the respondent is entitled to transfer him and that he continues to receive the same remuneration. The complainant gave evidence of the reduced and marginalised nature of his role in planning enforcement and derelict sites. This role contrasts with his busier, high profile previous roles where he managed a large budget. He attributes the transfer to his protected disclosures and that this represents penalisation. He also refers to breaches of confidentiality and isolation. The respondent denies the claim.

As opened by the respondent, the Labour Court in McGrath Partnership v Monaghan PDD162 held as follows:

“The [Protected Disclosures] Act is a new piece of legislation with limited case law, however, the provisions regarding penalisation are broadly similar to those provided in the Safety Health and Welfare Act, 2005. As this Court pointed out 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 2005 Act 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 2005 Act. 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 complained of 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. This involves a consideration of the motive or reasons which influenced the decision maker in imposing the impugned detriment.”

Having considered the written and oral submissions of the parties, I find that the transfer of the complainant is too remote to meet the “but for” test outlined by the Labour Court and applied to penalisation claims made pursuant to the Protected Disclosures Act. I make this finding for the following reasons. It is clear that the CEO of the respondent is entitled to re-organise and re-assign the cohort of senior managers within the organisation, of which the complainant is one. Given that the Chief Executive Officer has an overarching perspective on the work and future needs of the respondent, it is difficult to second-guess such a reordering of senior management. In evidence, the complainant was able to provide a detailed picture of the substantial changes to his role following his transfer in early 2016. I must also have regard to the evidence of the Line Manager, who outlined that she had also taken a role with a reduced budget, and pointed to the potential area for growth of the complainant’s new role. While the complainant’s new role has fewer delegated functions than a counterpart in planning, the functions he has in respect of planning enforcement and derelict sites are ones of significant public policy importance and of interest to the elected members. I also have regard to the length of time between, on the one hand, the events the subject of the disclosures, and on the other hand, the date of the transfer. While it is perfectly conceivable for a respondent “to wait in the long grass” for an employee making such a complaint, the length of time is a factor to be considered in weighing up the evidence in the application of the “but for” test. I also take account that the current CEO was not involved in the events complained of by the complainant. While it is conceivable that a new CEO might seek to penalise an employee to protect his or her predecessor, the fact of a CEO being new to an organisation and not implicated in any of the alleged wrongdoing is a factor to consider in applying the “but for” test. I also have regard to the upfront nature in which the CEO of the respondent acknowledged both disclosures made by the complainant.

Taking these factors into account, I find that there is insufficient evidence to conclude that the transfer of the complainant was because of, or in retaliation, to the protected disclosures. I have regard to the length of time and the fact that a different CEO is implicated in the disclosures. I also have regard to the fact that the complainant retained delegated functions, even if on a lesser scale than colleagues. I note the development potential of the role and the attitude of his Line Manager, as evident at the adjudication. While the complainant was obviously dissatisfied with the new role, taking the above factors into account, there is insufficient evidence to conclude that the “but for” test has been met and that the case of penalisation has been made out.

In respect of the breaches of confidentiality, I accept the complainant’s evidence that the conversations with colleagues occurred. I do not think that they amount to penalisation within the scope of the Protected Disclosures Act in that he did not suffer detriment. I make the same finding in relation to isolation. Given that the complainant reports into the Line Manager, he did not suffer detriment in the level of contact he had directly with the CEO, even if he is dissatisfied with this. It is obvious that the respondent should update its policy and procedure regarding protected disclosures; this does not, however, mean that such a complaint should automatically succeed.

It follows from the above findings that the complaint of penalisation does not succeed. I have cognisance of the longstanding nature of the complainant’s employment with the respondent and his contribution to the work of respondent, including in the success of the sporting venture, for example at national level in 2009.

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.

CA-00002403-001

Pursuant to the findings made above, I find that the complaint made pursuant to the Protected Disclosures Act does not succeed.

Dated: 11th May 2017

Workplace Relations Commission Adjudication Officer: Kevin Baneham

Key Words:

Protected Disclosures Act

Penalisation

Local authority