Complainant

Respondent

Parties

A Commercialisation Specialist

A Government Agency

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-00009741-001

16/02/2017

This is a claim of penalisation under the Protected Disclosure Act, 2014.

The Complainant has worked with the Respondent, a Government Agency since 8 August, 2000. He works a 37-hour week. On 16 February 2017, he submitted a complaint before the WRC that he had been penalised or threatened with penalisation for having made a protected disclosure under the Protected Disclosures Act, 2014.

The Complainant outlined his claim. He submitted that he had been reassigned as a Commercialisation Specialist (CS) within the respondent company in March 2007. He stated that the correct grading and associated pay scale for this position has never been applied. He described being penalised over several years in response to his having made a protected disclosure. He had sought to resolve his case of anomaly of grading under the Industrial Relations Acts, without success. He last presented his claim before an Adjudication hearing in October, 2016. The Adjudicator decided that he lacked jurisdiction to hear the case on foot of the prior involvement of the Labour Court.

Following this process, he attended a “mock interview “and the complainant contended that he had been exposed to penalisation arising from that forum. He submitted that the respondent “became emboldened” in its penalisation of him because of the WRC findings. He sought resolution under Section 12(1) of the Protected Disclosures Act, 2014. The Complainant was unrepresented.

In 2013, the complainant approached a Manager to ask whether he would be willing to review his role and responsibilities. This followed a Labour Court Recommendation. The Manager declined and stated that he was conflicted because he was responsible for an Insurance Policy which might have to be the subject of company focus in the event of a concession of his claim. He also stated that he was fearful of knock on claims. The Complainant sought a copy of the policy referred to.

The Complainant was informed that no such policy existed. He submitted a protected disclosure on 23 April,2014. He also actioned a complaint under Freedom of Information legislation. The Complainant eventually received and inspected a copy of the Insurance Policy. He concluded that the Policy had been relied on to settle an employment base claim in a separate jurisdiction.

The Complainant submitted that he had submitted a Protected Disclosure to a named Government Minister on June 14, 2016. A Copy of this document and the Ministers response were submitted in evidence.

The Protected Disclosure outlined that the Disclosure related to the Respondents failure to comply with Freedom of Information Legislation and to the waste of public monies. The Ministers Office responded on 16 August 2016.

“In conclusion, I do not believe that the issues you describe represent a series of relevant wrong doings within the meaning of the Protected Disclosures Act ,2014.”

The Complainant submitted further requests for clarification on 8 September 2016.

The Complainant submitted that the correspondence with the respondent relating to its failure to retrieve insurance policy records requested under FOI was a protected disclosure, despite the initial correspondence pre-dating the commencement of the Act in 2014. He argued that the Act had retrospective effect in accordance with section 5 of the Act. He argued further that he had been denied access to a copy of the Respondents Protected Disclosure policy document, which in turn hampered his capacity to submit his complaint sooner.

The Complainant submitted that he had made his complaints in good faith and that was sufficient to secure the protections of the Act.

Penalisation:

Incident 1, occurred November 2016 and notified to WRC on April 5,2017.

The Complainant was unsuccessful for interview for the role of Senior Commercialisation Specialist on September 1,2016. He took issue with the manner and appointment procedure of the successful appointment. On September 23, 2016, The Company Hr Manager informed him that the successful candidate demonstrated a better interview technique and the complainant may have been better suited for the role of technologist.

Incident 2 occurred in December 2016 and notified to the WRC in February, 2017.

Having a Technology Centre assigned to a role is seen by the respondent as someone “operating at Senior Scientific Officer level”. The Complainant set about seeking to secure this augmentation on foot of a retirement. At first it was agreed then later resiled from as another staff member who was on Senior Scientific Officer pay scale received the centre.

The Complainant presented for a Mock Interview on November 8 ,2016. He was unsuccessful in changing his grade and the lack of a technical centre in his portfolio was advanced as one of the contributory factors.

The Complainant also believed that his role was being eroded.

Incident 3 occurred in January 2017, notified to the WRC on April 5, 2017.

The Complainant outlined that a Commercialisation fund was taken into the remit of another division.

Incident 4 occurred February 2017 and was notified to the WRC on April 5 2017.

A funding application was sent in error to another Directorate and retained. This disadvantaged the complainant.

Incident 5, May 2017

The Respondent approached the complainant at the monthly team meeting in May 2017.He was asked to take on document monitoring duties.

He convened a meeting and outlined that this proposal would undermine his desire for senior appointment and the matter was resolved by all fellow Commercial Specialists having access to an online evaluation system.

Incident 6 July 2017

The Complainant lost another project to another division.

The Complainant summarised his case: He expressed a genuine belief that he is being discriminated against, singled out for unfair treatment and was being isolated, victimised and side lined by the company.

He pointed to the fact that he had been transferred from his previous role as Research Officer to his current role in March 2007. All but one of the Commercialisation Specialists in his directorate were on Senior pay scale, even though their roles were indistinguishable.

The job of Commercialisation Specialist had only ever been advertised at Senior grade. The Complainant had never received a job description outside the respondents “role profiles” listed on its internal intranet site. The Complainant had been denied promotional opportunities.

The Claim sought a remedy for the wrong doings in the form of:

1 Alignment to Point 9 of the Senior pay scale.

2 Compensation and Retrospection.

3 The delay in submitting the complainant was grounded on the vacuum surrounding the Respondent Policy on Protected Disclosures

The Respondent provided a background to the evolution of the Government Agency, which was established in July 1998. The Respondent submitted that the Company had not received a protected disclosure from the complainant and were therefore not able to be able to provide any documentation or accept that the complainant could have been penalised under the Act. The Respondent contended that the Complainants central issue constituted his ongoing dissatisfaction with his current grade of Research Officer.

The Respondent outlined that the parties had met at WRC level on several occasions. On November 8, 2016, following another WRC hearing on October 5,2016, the parties met to discuss the complainant’s current role and responsibilities, relying on a recently advertised Senior Commercialisation Specialist role as a comparable role.

The Respondent formed the view that the complainant was not operating at the Higher Grade citing a lack of demonstration/articulation of several key components deemed necessary for the role. The Complainant remained dissatisfied with these findings. The WRC Adjudicator did not find in favour of the Complainants case in a Decision which issue on January 31,2017.

I find that the Labour Court has issued recommendations and under Section 13(3)(b), I have no jurisdiction to hear the complaint.

The Respondent submitted that:

1. The Respondent submitted that this was the Complainants second occasion to submit a claim under the Act. He had previously withdrawn a similar claim in 2016.
2. The Complainant had not clarified what his Protected Disclosure involved. He had informed the company that he had made a Protected Disclosure to the Minister for Jobs, Enterprise and Innovation, which the Company had not received.
3. The Complainant was in possession of the Company’s’ Protected Disclosure dated 2011 which was not utilised. The Company resent the Policy to the Complainant on May 5, 2017.
4. The Company outlined the correct procedures relating to the formulation of a Protected Disclosure contained in Section 3 of the Policy

c Appeal to Chairman of the Board.

5. The Respondent had engaged with the complainant on the Organisations Corporate Insurance Policy, but the complainant had not linked these conversations to a Protected Disclosure. These conversations were within normal Industrial Relations conversations.
6. The Respondent submitted that the Complainants claim for upgrading was carried out in the exact manner as all other claims of similar nature in the Agency.
7. The Respondent was not aware of the existence of a Protected Disclosure made by the complainant. The Respondent denied penalisation and sought that the claim be dismissed.

I have considered both parties oral and written submissions in this case.

The Protected Disclosure Act, 2014, came into operation on 15 July, 2014 and is introduced as An Act to make provision for and about the protection of persons from taking of action against them in respect of the making of certain disclosures in the Public Interest and for connected purposes.

In accordance with Section 3 of the Act, a worker, who make protected disclosures about actual or potential wrongdoing will be protected from dismissal or from suffering any other detriment in making the Disclosure.

Protected Disclosure is defined in Section 5 of the Act as the “disclosure of relevant information “made by a worker. The worker must reasonably believe that the information disclosed tends to show one or more “relevant wrongdoings “which come to their attention about their employment.

Protected disclosures

….

(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 about the worker’s employment.

Relevant Wrongdoing

(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.

(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 during obtaining legal advice.

(7) The motivation for making a disclosure is irrelevant to whether 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.

In the instant case, the Complainant has submitted that he made two protected disclosures.

He has submitted that he has been penalised by his employer throughout that period and has sought redress for this.

Disclosure to Minister

8. A disclosure is made in the manner specified in this section if—

(a) the worker is or was employed in a public body, and

(b) the disclosure is made to a Minister of the Government on whom any function relating to the public body is conferred or imposed by or under any enactment.

 It falls to the Respondent in accordance with Section 5(8) of the Act to show that the disclosure is not a protected one.

Section 12:

(a) declare that the complaint was or was not well founded,

(b) require the employer to take a specified course of action,

(c) require 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 260 weeks’ remuneration in respect of the employee’ s employment calculated in accordance with regulations under section 17 of the Unfair Dismissals Act.

Cases under the Protected Disclosure Act, 2014 are still in their infancy. In her Chapter of the Murphy Reagan, Employment Law book, 2017, Dr Lauren Kirwan, an Authority in the area stresses that the disclosure

“Must be a disclosure of information and not merely a bare allegation or an expression of concern “She referred to a UK decision in Everett Financial Management Ltd V Murrell, UK EAT 552,553,952/02 where the UK, EAT on appeal held that a petition did not disclose any information”

The difference between a disclosure and an allegation was set out by Slade J in Cavendish Munro Professional Risks Management Ltd V Geduld, UK EAT /195/09

“Further, the ordinary meaning of giving information is conveying facts. During the hearing before us, a hypothetical was advanced regarding communicating information about the state of a hospital. Communicating information would be “the wards have not been cleaned for the past two weeks. Yesterday, sharps were left lying around “Contrasted with that would be a statement that “you are not complying with the Health and Safety requirements” It is our view this would be an allegation and not information “

I wish to make several preliminary observations in this case

1 The claim of penalisation was introduced by the complainant as being embedded in his pursuance of his honest belief that he was incorrectly graded for the work he did.

2 He confirmed that recent claims in pursuance of the correct grade had failed and was now seeking a resolution under Section 12 of the Protected Disclosures Act, 2014.

3 He attributed his delay in submitting a complaint under this legislation to the lack of an appropriate Policy at his employment.

4 The Complainant made his claim of Penalisation to the WRC on February 16 ,2017.

5 The Respondent submitted that they had not been in possession of a Protected Disclosure from the Complainant and sought sight of the document on 5 May 2017.

6 There was no visible communication path between the Ministers Office and the Respondent in respect of the 2016 Disclosure.

The Labour Court in Aidan and Henrietta Mc Garth Partnership v Anna Monaghan PDD 2/2016 established a test for penalisation under the Act.

1 Establish that a Protected Disclosure has been made.

2 Examination of whether penalisation has taken place within the meaning of the Act.

I have read both documents presented at hearing and on which the complainant has based his complaint.

I cannot establish that the document lodged on April 23, 2014 constitutes a Protected Disclosure as set down in Section 5 of the Act. Instead, in my opinion it forms an extension of a grievance underway by the complainant into his then elusive grading system.

In my consideration of the second document sent by the Complainant to a Minister of a Government Department on June 14, 2016, I noted that the complainant had referred to not having raised these concerns through Protected Disclosure previously and he feared that protection from penalisation may allude him. The Complainant exercised his right to submit his document to the Minister in accordance with Section 10. It is regrettable that there was no visible pathway of communication between the Ministers Office and The Respondent in this case.

I cannot establish that this document constituted a Protected Disclosure either as it is interwoven with a request for a job evaluation to be undertaken and the purpose of protected disclosure out laws a pursuance for personal gain. The Complainant clearly has an unresolved grievance with his employer. The Document is grounded in bare allegations rather than information as required under the Act.

While I have found that the documents as submitted do not constitute Protected Disclosures, as such my role in this case is over as I cannot proceed with the Labour Court Test However, I find that I should make a rider comment on the clear sensitivities presented in the case before me.

The Complainant presented his case with a strong sense of grievance in respect of his perceived anomaly in his Grading yet he stated that he was not prepared to interview in an open competition situation. I find that the complainant may benefit from a period of 1:1 coaching and mentoring to seek to resolve this impasse aimed at either acceptance of his current situation or to receive support and guidance to pursue his plans for promotion.

Finally, I would like to stress the relevance of SI 464/2015 the Statutory code on Whistle blowing /Protected Disclosure. This gives very clear guidance on assisting a workplace to appreciate the differences in Grievances and Protected Disclosure.

This Code is designed to:

• help employers, workers and their representatives understand the law regarding the disclosure of information relating to wrongdoing which comes to the attention of workers in the workplace;
• give guidance and set out best practice regarding how to deal with the disclosure of such information in the workplace.

• the disclosure of information relating to wrongdoing in the workplace is best dealt with in the first instance at workplace level. However, there may be circumstances where this may not be appropriate;
• it is in the interests of employers, workers and their representatives to have in place clear and agreed procedures providing for “whistleblowing” in the workplace.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I decide in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 12 of the Protected Disclosure Act, 2014 requires me to decide in relation to the complainant.

I have found that the complaint is not well founded.

Protected Disclosure