PDD183

This is an appeal brought by Mr Andrew Connell (‘the Complainant’) against a decision of an Adjudication Officer (ADJ-00007228, dated 23 November 2017) under the Protected Disclosures Act 2014 (‘the 2014 Act’). The Notice of Appeal was received by the Court on 5 December 2017. The Court heard the appeal in Cork on 5 April 2018. The Complainant appeared as a litigant in person before the Court.

Alleged Protected Disclosures

The Complainant submits that he made a total of three protected disclosures within the meaning of the 2004 Act to his employer, Enterprise Ireland (‘the Respondent’) and a further protected disclosure to the Minister for Jobs, Enterprise and Innovation. The following is an outline of the matters which the Complaint submits are the protected disclosures he made:

No 1: The Complainant sent an email to the Respondent’s Freedom of Information Officer on 6 June 2014 in which he expressed his view that the Respondent had not fully met his earlier freedom of information request;

No. 2: The Complainant appealed the Freedom of Information Officer’s decision on 8 July 2014. In his written appeal he stated his opinion that the Respondent had failed to comply with its obligations under the relevant legislation;

No. 3: On 20 January 2016, the Complainant - in an internal company email - stated his opinion that the Respondent’s purchase of an Employment Practices Liability insurance policy was a ‘prodigal use of taxpayers’ money’;

No 4: On 14 June 2016, the Complainant wrote to the Minister for Jobs, Enterprise and Innovation. In his letter, he again made reference to the matters detailed at No. 1, No. 2 and No. 3 above. He also made reference to what, in his opinion, amounted to a third relevant wrongdoing on the part of the Respondent i.e. its alleged decision to deliberately conceal information and/or documentation relevant to the subject matter of the Complainant’s protected disclosures.

Alleged Penalisation

The Complainant submits that he suffered a detriment that amounts to penalisation within the meaning of the 2014 Act on six occasions:

Incident 1: On 3 November 2016, the Complainant was informed that he had been unsuccessful in an internal competition for promotion to the role of Senior Commercialisation Specialist;

Incident 2: In October 2016, the Complainant was relieved of the obligation to supervise a Technology Centre;

Incident 3: In March 2017, a colleague requested a potential applicant to submit projects to her department rather than to the Complainant’s;

Incident 4: In April 2017, a project on which the Complainant had been advising was assigned to a different directorate within the Respondent organisation;

Incident 5: On 25 May 2017, the Complainant’s Departmental Director purported to assign the duties previously performed by a Commercialisation Officer who had recently left the business to the Complainant;

Incident 6: A repeat of incident 4.

Respondent’s Submission

The Respondent’s submission to the Court amounts essentially only to a denial that it received any protected disclosure from the Complainant and a denial that it penalised him within the meaning of the 2014 Act.

The Law

Section 5 of the 2014 Act contains an exhaustive definition of ‘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.

• (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 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.

Section 2 of the 2014 Act provides that:

“‘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;”

“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.”

Discussion and Conclusion

The Complainant’s original complainant under the 2014 Act was received by the Workplace Relations Commission on 16 February 2017. Only Incident 1 and Incident 2 are encompassed by the original complaint. The other alleged incidents of penalisation clearly post-date the date of the complaint.

The Complainant, however, did not furnish the Court with any evidence to substantiate his claim that either Incident 1 of Incident 2 would not have occurred ‘but for’ his having raised any one or more of the matters listed at No.1 to No.6 above with the Respondent and/or with the Minister for Jobs, Enterprise and Innovation. The Complainant has, therefore, failed to substantiate his claim that he was penalised with the meaning of the 2014 Act.

In all the circumstances, therefore, and having regard both to section 5(8) of the 2014 Act as well as the Respondent’s decision not to make a substantive submission to the Court in relation to the incidents cited by the Complainant as protected disclosures, the Court is of the view that it is neither necessary nor appropriate for it to offer its opinion as to whether those incidents constitute protected disclosures within the meaning of the 2014 Act.

Decision

Having carefully considered the parties’ submissions and the totality of the evidence put before it, the Court finds that the claims advanced by the Complainant under the 1994 Act are not well-founded.

The appeal fails. The Court, therefore, affirms the decision of the Adjudication Officer.

The Court so determines.

Signed on behalf of the Labour Court



Alan Haugh
CR______________________
11 April, 2018Deputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Ciaran Roche, Court Secretary.