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-00007010-001

14/09/2016

The Complaint is employed by the Respondent since the 1^st   November 1979. He currently holds the   position of a Senior Bank Official. He   alleges that he was penalised by the Respondent for having made a protected   disclosure under the Protected Disclosures Act 2014. He filed a complaint   with the WRC on the 14 September 2016.

The following is a summary of the Complainant’s   submissions made over the duration of 2 hearings.

The Complainant highlighted the following areas of   grievances with the Respondent:

•   That he was unfairly treated by the Respondent   arising from the discovery of anomalies in the Respondent’s product offering   while working in the Dundalk office.
•   That he had been marginalised and bullied in   the Dundalk office.
•   That the Respondent failed to take his   concerns and bullying seriously.
•   That he was unfairly treated when he applied   for grandfather status. That he met   the criteria to be given grandfather status, but the Respondent went out of   their way to undermine and humiliate him.   He was eventually given grandfather status.
•   That an article appeared in the Sunday Times   newspaper in June 2006 regarding the Respondent’s credit card product. The article advertised in relation to a   platinum card had a serious error. The   Complaint alerted the Respondent about this error in order to save serious   embarrassment. He was fearful that an attempt was being made by certain senior   management to mis-sell products. He   received no recognition for doing this and was marginalised and undermined   for doing so.
•   That he applied for voluntary early retirement   in an attempt to leave the job with some dignity. He was entitled to early   retirement, but the Respondent failed to allow him to retire.
•   That when he was seeking to return to work in   June 2015, he was met with a head-butt like attack in the doorway by Mr. RR.
•   That he suffered a number of detriments in   terms of his work:

-            The decline of his credit card

-            Performance review downgraded

-            Isolated in the workplace

-            Psychological and physical abuse and

-            Defamation

•   That he was bullied out of his job because he   was a whistleblower. That his   treatment as a whistleblower was appalling.   That he was not treated seriously. That the Respondent failed to   investigate his concerns in line with the Respondent’s own international   standards.

As a result of the behaviour of   the Respondent, he had no choice, but to file a complaint with the WRC under   the Protected Disclosures Act 2014.

The following is a summary of the Respondent’s submissions   made over the duration of 2 hearings.

The Complainant’s claim before the Adjudication Officer   relates to the provisions of Schedule 2 of the Protected Disclosures Act   2014. There is no other claim before   the Adjudication Officer for consideration.

The Complainant submitted his claim to the WRC on the 14^th   September 2016. His claim form refers to 4 emails sent to the inbox of the   WRC and it is not clear whether these emails have been disclosed to the   Respondent.

The Complainant contends that he was bullied out of his   job because he is a whistleblower.

The Respondent disputes the entirety of the claim being   advance by the Complainant.

In the view of the Respondent, the Complainant is not   entitled to the redress sought by him. The Complainant remains an employee of the   Respondent. His employment has not been   terminated and accordingly the only claim available to him is that he has   been subjected to penalisation.

Section of the 12 states:

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.

(3) Schedule   2 shall have effect in relation to an alleged contravention of subsection   (1).

Schedule 2 of the Act provides for the mechanism for   redress if there has been an alleged contravention of section 12 of the Act –  

(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.

Time Limits

The Complainant’s claim is out of time. The Complainant filed his complaint to the   WRC on the 14 September 2016. The   scope of the within claim is events which allegedly occurred no earlier than   the 15 March 2016 (or if an extension of time is permitted no earlier than   the 15^th September 2015).   The matters referred to by the Complainant in his claim form are all   historic matters and do not occur within the timeframe in the scope of this   claim. This is an important   point. It is a point that goes to the   jurisdiction of the WRC in dealing with this claim. The Respondent’s clear position is that the   claim is out of time and cannot be assessed having regard to the factual   situation arising here.

Protected   Disclosure

The Complainant has not made a protected disclosure within   the meaning of the Act. It is clear from reading section 5 (1) – (8) of the   Act that the Complainant’s complaint is not a protected disclosure. In the first instance, there has to be a   relevant wrongdoing that came to the attention of the employee during the   course of his employment for the purposes of the 2014 Act to be triggered.   The Complainant has not identified which subsection of section 5 he relies   on.

An article appeared in the Sunday Times newspaper in June   2006 regarding the Respondent’s product. The article contained inaccurate   information regarding the fee attaching to the Credit Card. At the time, the Respondent’s Credit Card   Department spotted this error and it was rectified by the Sunday Times the   following week as it was their error and not the Respondent’s error. The Complainant contacted the ROI MD office   to highlight the error in the paper and requested that the Respondent issue   him with a financial reward for highlighting this error to the MD. At the time the Complainant was thanked for   his proactivity and advised that the business area had addressed the issue   with the newspaper and it was not the Respondent’s policy to provide   financial rewards to staff for highlighting such matters. This was an error on the part of the   newspaper and it was an error that was rectified. It was not an attempt by any staff member   in the Respondent company to mis-sell products and no customer was affected   by this error. While it is accepted,   the Complainant also noticed the misprint in the newspaper article and   brought this to the attention of the Respondent, it was on foot of the   Respondent’s own Credit Card Department that the error was rectified. The Complainant, in also pointing the issue   out to the Respondent, did not make a protected disclosure within the meaning   of the 2014 Act.

The Complainant has referenced in his claim form bullying   and harassment in the Dundalk office and minutes of a non management meeting   in March 2011. No minutes of any   meeting had been attached to the claim form to the WRC. The Complainant contends he was forced out   of his job because of this bullying conduct in March 2012.

The Respondent is aware that the Complainant has long held   the belief that he was the subject of bullying behaviour from 2005 to 2011. On the 17^th June 2012 the   Complainant emailed the Respondent’s Code of Conduct mailbox and received a   reply from Mr. DL, HR, who advised the Complainant that under the   Respondent’s policy an employee had 6 months from the most recent occurrence   of the conduct Complained of to make his complaint. In exceptional circumstances this time line   could be extended to 12 months. As the   Complainant’s complainants appeared to date back to 2006 he was asked to   provide details of any exceptional circumstance that should be taken into   account. No further details were   provided by the Complainant in relation to this matter.

Following the appointment of Ms JF to the position of Head   of Human Resources, she reviewed the Complainant’s case and concluded that no   exceptional circumstances which would justify an investigation taking place   outside the normal time limit existed. The Respondent does not have any   record of the Complainant formally reporting or making the Respondent aware   of any bullying allegations in a timely manner and they were not raised in a   formal manner or in line with procedures. A general assertion of bullying treatment is   not a relevant wrongdoing within the meaning of section 5 of the 2014 Act.

The Complainant alleges he was assaulted by Dr. R on the   11^th June 2015. This is   denied by Dr. R who says this did not occur.   In any event, such an assertion is not prima facie evidence of   breaches of section 5 of the 2014 Act.  

The Respondent’s position is that there has been no   protected disclosure of relevant information in the meaning of the Act and in   any event the allegation against Dr. R occurred well outside the scope of   this claim.

Penalisation

The Complainant was not the victim of any less favourable   treatment or penalisation as alleged by him.

Section 12 of the Act states:

“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 meaning of penalisation has been addressed in a   non-prescriptive form in the interpretation section of the Act as follows:

“Penalisation means any act or omission that affects a worker to the   worker’s determent, 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 was not subjected   to any of the treatments as alleged above or any penalisation howsoever   specified.   The allegation made in   this claim is that the Complainant’s credit card was declined, his   performance was downgraded, his grandfather status was declined and was   isolated/bullied etc. The Respondent   does not accept that the Complainant was bullied and isolated in the   workplace as alleged by him and there is no evidence available to it to   suggest this is so.   The Complainant   has not worked for the Respondent since March 2012 and therefore there can be   no issue of him being subjected to bullying treatment in the workplace within   the timeframe in scope on this referral.   The Complainant’s credit card levels are matters personal to him and   to his personal finances. It is not   proposed to address these issues in detail at this juncture.

In terms of the Complainant’s Grandfather   status having been declined, this is not accurate. It has been accepted there was delay in the   recognition of the Complainant’s Grandfather status (as formally accepted at   the mediation process chaired by Dr. M). The Central Bank introduced the Minimum   Competency Requirements in January 2007 which sets out the minimum   educational standards to be attained by staff who advise customers on various   impacted financial products. As part of this process a facility was made   available to staff to claim Grandfather status on the basis of previous   relevant experience, rather than sitting exams. Grandfather status required validation of   pervious relevant experience by line management. A central ratification committee was set up   to review all claims for grandfathering status. Where a claim for grandfather   status was rejected, the staff member was advised of the need to commence   formal study. The Respondent commenced   a grandfathering process in October 2006 whereby all staff were asked to self   certify their claims. A further   opportunity was afforded to staff in September 2008. In the case of the Complainant, it appears   from the Respondent’s records that he did not avail of these   opportunities. This is why the   Complainant’s grandfather status was not approved. In November 2012 the Complainant was issued   with a Statement of Grandfather status dated 30^th November 2012.

Any alleged delay in the   Complainant being granted his Grandfather status is well outside the time   scope of this claim. The Complainant   was not bullied out of his job.

The Complainant is not a   whistleblower. He has not made protected disclosures and he has not been   penalised by the Respondent.

The Complainant filed his complaint with the WRC on the 14   September 2016. The scope of the within claim is events which allegedly   occurred no earlier than the 15 March 2016 or if an extension of time is   permitted no earlier than the 15 September 2015. The Complainant argued that   the reason that his complaint is outside the permitted time limits is that   his trade union official advised him that there would be no point in filing a   complaint with the WRC in relation to his claim.

I find that I have no jurisdiction to issue a decision in   relation to the complaint filed by the Complainant under the Protected   Disclosures Act 2014 as the complaint was not filed within the prescribed   time limits as is outlined under schedule 2 of section 12 (6) and (7) of the   2014 Act.

Based by the evidence presented by both parties, I find   that that I have no jurisdiction to issue a decision in relation to the   complaint filed by the Complainant under the Protected Disclosures Act 2014.

This complaint was not filed within the prescribed time   limits as is outlined in Schedule 2 of Section 12 (6) and (7) of the 2014   Act.