PDD185

This matter comes before the Court as an appeal by George McLoughlin (the Appellant) of a decision of an Adjudication Officer in his complaint made under the Protected Disclosures Act, 2014 (the Act) against his former employer the Minister for Jobs, Enterprise and Innovation [now the Minister for Business, Enterprise and Innovation] (the Respondent).

The Appellant made his complaint to the Workplace Relations Commission on 15^thDecember 2016.The Adjudication Officer, in a decision dated 28th November 2017, determined that the Appellant’s complaint was not well founded.

The Complainant’s Notice of Appeal was received by the Court on 2^ndJanuary 2018.

The matter before the Court relates to the contention of the Appellant that certain events amounted to penalisation within the meaning of the Act arising from the making by him of a Protected Disclosure as defined in the Act. The Respondent accepts that the Appellant made a protected disclosure within the meaning of the Act in October 2015.

Preliminary matter – time limits.

The Respondent submitted that certain events which were contended to be a penalisation of the Appellant within the meaning of the Act fell outside the time limit for the making of a complaint set out in the Act.

The Appellant submitted that he had delayed submitting his complaint while considering participation in mediation at the suggestion of the Respondent and that events falling outside of the time limit specified in the Workplace Relations Act, 2015 (the Act of 2015) should be considered by the Court in the within appeal. The Appellant submitted also that the Court could regard events occurring before the cognisable period for the within complaint as part of a continuum of penalisation and consequently capable of being considered by the Court.

The Court, noting that the matter of time limits applicable to the within complaint had been considered at first instance, gave careful consideration to the submissions of the parties on this preliminary matter.

The Act of 2015, at Section 41(6) provides as follows

• (6) Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.

• 8) An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.

The Appellant submitted that reasonable cause could be shown for a delay in his making of a complaint under the Act and consequently the Court, in accordance with the Act at Section 41(8), extend the period allowed for the making of his complaint. He submitted that although he was employed as an inspector by the Workplace Relations Commission at the material time and consequently generally familiar with the concept of time limits for the making of complaints under employment legislation, he was not specifically familiar with the time limits set out in the Act. He additionally submitted that he delayed for a period in making his complaint because he was considering a proposal by the Respondent that the parties should engage, including through mediation, in an attempt to resolve the issues between them.

The Court is satisfied that the legal principleignorantjuris non excusal(“ignorance of the law excuses not”) applies in this case and therefore the Appellant’s submission that his lack of specific knowledge of the time limits contained in the Act cannot be accepted as reasonable cause for a delay in making the within complaint. In Minister for Finance v CPSU and OR’s [2007] 18 ELR 36 the High Court held that ignorance of one’s legal rights, as opposed to the facts giving rise to those rights, cannot be accepted as an excuse for not observing a statutory time limit.

The Appellant has also submitted that the making of his complaint was delayed by virtue of his consideration of the Respondent’s offer of internal procedures including mediation in an effort to resolve matters. The Court understands from the submissions of the parties that the Respondent gave indications that such avenues might be possible in late August 2016. Ultimately the Appellant declined the avenue of Mediation on 28^thSeptember 2016.

In those circumstances the Court accepts that consideration was being given to an alternative to the making of the within complaint for a period of one month approximately. The Court notes however that the within complaint was not presented to the Workplace Relations Commission for more than two months after the Appellant’s decline of an offer of mediation. Nevertheless, the Court accepts that the Appellant has shown reasonable cause for the extension of the time for the making of the within complaint by one month.

The Court finds, in exercise of its power under the Act Section 41(8) that the cognisable period for the within complaint is the 16^thMay 2016 to 15^thDecember 2016.

Summary position of the Appellant

The Appellant submitted that a range of actions taken by the Respondent or omissions by the Respondent in the cognisable period amounted to penalisation within the meaning of the Act as follows:

Failure to re-activate disciplinary proceedings against the Appellant.

The Appellant had made a Protected Disclosure in October 2015. In December 2015 the Respondent initiated disciplinary proceedings against the Appellant arising from other matters. The Appellant contended that the initiation of those disciplinary proceedings were motivated by his protected disclosure. The Appellant advised the Respondent HR Officer that in his view the disciplinary proceedings were connected with his protected disclosure which was at that time under investigation by an external expert appointed by the Respondent. Upon being advised by the Appellant of the connection between his protected disclosure and the disciplinary proceedings the Respondent’s HR Officer suspended the disciplinary proceedings. Those proceedings were never re-activated prior to the Appellant’s retirement from his employment or since.

The Appellant submitted that the continuing suspension of disciplinary proceedings against him throughout the cognisable period amounted to penalisation within the meaning of the Act. He submitted that the threat of disciplinary action was ‘hanging over him’ throughout the cognisable period for the within complaint and he was denied the opportunity to clear his name.

Denial of access to the Respondent’s ICT system and files while out sick.

The Appellant submitted that he was absent through serious illness from 10^thFebruary 2016 to August 2016. With effect from 9^thMay 2016 his access to the ICT system of the Respondent was suspended following correspondence from the Respondent advising him, inter alia, that “it is not permissible for you to engage in any activity related to your work …. While you are on sick leave”.

Similarly, the Appellant submitted that the Respondent made efforts in May of 2016 to have the Appellant return case files of the Respondent to the Respondent while on sick leave.

The Appellant submitted that he wished to retain access to the Respondent’s ICT system in order to monitor the progress of cases relevant to the protected disclosure he had made in October 2015. In addition, he wished to be able to continue to have access in order to support the external investigation into his protected disclosure which commenced in November 2015 and concluded in May 2016.

The Appellant submitted that the failure of the Respondent to allow him access to the Respondent’s ICT system from 9^thMay 2016 until his return to work from sick leave in August 2016 amounted to a penalisation within the meaning of the Act.

Denial of access to the Respondent’s ICT system on his return to work.

The Appellant submitted that he advised the Respondent on 18^thJuly 2016 that he would be fit to return to work on 22^ndJuly 2016 and he asked to be restored to the Respondent’s ICT system. Upon discovering that he had not been restored to the system he had to cancel his return to work and to take annual leave to cover the period from 22^ndJuly 2016 to 26^thJuly 2016. He returned to work on 26^thJuly 2016 but as no work had been assigned to him and his access to the ICT system had not been restored he was again obliged to use further annual leave. He submitted that he was obliged to take such leave until his eventual return from leave on 16^thAugust 2016.

He submitted that the denial to him of access to the ICT system of the Respondent upon his return to work amounted to penalisation within the meaning of the Act.

Respondent’s enquiry regarding Legal Action and Respondent’s taking of legal advice.

The Appellant submitted that he had engaged in a defamation action against an employer with whom he had had dealings in his role as a Labour Inspector. The Director of Legal Services of the Workplace Relations Commission had, on 25^thJuly 2016, written to him advising that the legal action he had initiated against an employer could impact on his ability to continue to act effectively as a Labour Inspector and that the Workplace Relations Commission would be seeking legal advice in the matter.

The Appellant submitted that this enquiry and statement of an intent to take legal advice amounted to penalisation within the meaning of the Act. He submitted that he had been advised by the Director of Legal Services of the Commission on 3rd August 2016 by e-mail that ‘no punitive action had been directed at him and advising him that legal advice had been sought as to whether there is any conflict between an employee continuing out specific duties of a Labour Inspector … where that employee has instituted proceedings arising directly from events which occurred as a result of an inspection. That advice is awaited’

He submitted that he had never been provided with the legal advice secured by the Respondent.

He submitted that the intervention of the Director of Legal Services for the Commission amounted to a penalisation within the meaning of the Act.

Failure to accede to the Appellant’s application to be retained in employment beyond the age of 65 or to assess that he met the criteria for retention.

The Appellant reached the age of 65 on 9^thJanuary 2017. The Appellant submitted an application to the Respondent under Circular 13/75, which allows the retention of civil servants beyond normal retirement age in certain circumstances, to be retained in employment after his 65^thbirthday on 9^thJanuary 2017.

The Respondent consulted with Department of Public Expenditure and Reform and advised that no requests for retention were being sanctioned at that time.

The Appellant withdrew his application on 28^thNovember 2016.

Following his withdrawal of his application the Respondent advised the Appellant that it had examined the criteria contained in the relevant circular and concluded that the Appellant did not meet the criteria involved in an application for retention.

The Appellant submitted that the Respondent incorrectly applied the criteria to him and that the incorrect application of the criteria was a penalisation within the meaning of the Act.

Evidence of the Appellant

The Complainant appeared as a litigant in person before the Court and did not call any witnesses on his own behalf.

Summary position of the Respondent.

The Respondent submitted that it accepted that the Appellant had made a protected disclosure in October 2015. It submitted that it appointed an independent investigator to examine the matters detailed in the disclosure. The Respondent submitted that it dealt with the disclosure properly and that it did not in any way penalise the Appellant as a result of his having made that disclosure.

The Respondent submitted in respect of the matters contended to be penalisations within the meaning of the Act within the cognisable period for the within complaint as follows:

Failure to re-activate disciplinary proceedings against the Appellant.

The management of the Workplace Relations Commission (WRC), on 29^thJuly 2015, requested that the Respondent initiate disciplinary proceedings against the Appellant. That request was made to the HR Manager of the Respondent, MR JH, who has a specific function in relation to disciplinary proceedings within the Respondent’s disciplinary code.

The Appellant subsequently, in October 2015, made a protected disclosure to the senior management of the WRC and to an Assistant Secretary of the Respondent. An independent investigator was appointed to investigate that matter in November 2015.

The Respondent’s HR manager, due to annual leave and his difficulty in finding time to consider the request for disciplinary proceedings as made by the WRC in July 2015, only determined that those proceedings required to be considered under the Respondent’s disciplinary code in November 2015. The HR manager alone had responsibility for progressing the disciplinary proceedings and he did so in the absence of any knowledge of the protected disclosure made by the appellant.

In December 2015 the HR manager advised the Appellant that disciplinary proceedings would be commenced against him and at that point the Appellant advised the HR Manager of the protected disclosure.

The Respondent’s HR manager was unaware of the fact of the protected disclosure having been made or its content until informed by the Appellant of these matters in December 2015. The HR manager had no function in dealing with the Appellant’s protected disclosure.

The HR Manager, at that point, formed the view that, in those circumstances it was not appropriate to continue disciplinary proceedings until the investigation into matters referred to in the protected disclosure had been completed. That investigation was completed in April 2016. The Appellant was absent through illness from February to August 2016. The Respondent did not consider it appropriate to engage in disciplinary proceedings while the Appellant was on sick leave recuperating from a serious health condition.

Following the Appellant’s return from sick leave and the HR manager’s return from annual leave in September 2016 efforts were being made to explore the possibility of engagement, including through mediation, to resolve matters between the parties. The option of mediation was turned down by the Appellant at the end of September 2016. The Respondent did not take steps to resume the disciplinary process between October and the impending retirement of the Appellant in January 2017.

Denial of access to the Respondent’s ICT system while the Appellant was absent on sick leave.

The Respondent submitted that despite being absent on certified sick leave the Appellant contacted WRC management on 21^stMarch 2016 stating that he wished to update an employer on outstanding issues in relation to Sunday premiums. The Director of Corporate Services for the WRC, Ms FK, wrote to the Appellant on 31^stMarch 2016 outlining that the sick leave policy of the Respondent provided that employees should not work while on sick leave. In addition, she requested that the Appellant return to the Respondent any files which he had in his possession. She explained to the Appellant that these files were required in order to allow ongoing inspections to be progressed.

The Appellant wrote to Ms FK on 31^stMarch 2016 stating that he would not return the files until questions that he had raised with the WRC had been addressed. Following a further letter from the WRC the files were returned on 25^thApril 2016.

The Appellant was advised by the WRC in the letter of 13^thof April that, having regard to the duty of care owed by the Respondent and the WRC to employees on sick leave, he should cease to access the Respondent’s ICT based case management system while he remained absent. That letter also advised the Appellant that if he continued to access the system his access could be terminated while he remained absent through illness.

The Appellant continued to access the Respondent’s ICT system following the issuance of that letter and consequently the Respondent notified the Appellant by letter on 9^thMay 2016 that his access to the system had been suspended for the duration of his recovery.

The Respondent submitted that no penalisation of the Appellant took place and in particular no penalisation related to his having made a protected disclosure took place.

Denial of access to the Respondent’s ICT system on his return to work.

The Appellant was due to return to work on 27^thJuly 2016. There was some confusion between the Appellant and the Respondent as to whether he would be returning to work in person or returning to work from home. The Respondent understood that the Appellant was returning to work in person and accordingly all IT access excluding access to the case management system was restored to the Appellant via his desktop on 27^thJuly 2016. Remote access to the IT system was restored to the Appellant on 29^thJuly 2016. The Appellant was informed on 8^thAugust 2016 that access to the Respondent’s case management system would be restored to him upon his return to work. On 15^thAugust 2016 the Respondent wrote to the Appellant advising that his access to the case management system had been restored.

On 25^thJuly the WRC Director of Legal Services, Ms SL, advised the Appellant that the WRC was taking legal advice as to whether the fact that the Appellant had instituted defamation proceedings against an employer in his catchment area could impact his ability to act effectively as a Labour Inspector. A Regional Manager for the WRC, Mr JK, advised the Appellant on 29^thJuly 2016 that his access to the ICT based case management system only was being restricted pending receipt of that legal advice.

Respondent’s enquiry regarding Legal Action and Respondent’s taking of legal advice.

The Respondent submitted that the contention that the action of the WRC / NERA management in response to the Appellant’s defamation proceedings taken against an employer arising from his work as an Labour Inspector constituted penalisation was a new complaint raised only at the point of appeal and not raised at first instance.

On 25^thJuly the Respondent’s Director of Legal Services wrote to the Appellant informing him that the WRC was taking independent legal advice as to whether the defamation proceedings could impact his ability to act effectively as a Labour Inspector.

The WRC management decided to suspend the Appellant’s access to the ICT based case management pending the receipt of that advice. That advice ultimately was to the effect that the Appellant should be assigned to alternative duties. Notwithstanding that advice the WRC decided that the Appellant should remain in his role as inspector. His access to the case management system was restored on 15^thAugust 2016 and the appellant was so advised on that date.

No action of the Director of Legal Services arose from the Appellant’s having made a protected disclosure.

Failure to accede to the Appellant’s application to be retained in employment beyond the age of 65 or to assess that he met the criteria for retention.

The Respondent submitted that the Appellant, on 28^thOctober 2016, applied under relevant circulars to be retained in his employment beyond his retirement age of 65. That application was withdrawn by the Appellant on 28^thNovember 2016. The Appellant retired on 8^thJanuary 2017 upon reaching the age of 65.

The Respondent took advice from Department of Public Expenditure and Reform following receipt of the application on 28^thOctober and, upon being advised on 3^rdNovember 2016 that it was not possible at that time to consider requests for retention from officers, the Respondent advised the Appellant that retention was not possible. The Appellant sought clarity upon his application and the Respondent advised the Appellant of its view that, even if it had not received advice that no officer’s application could be considered at that time, the Appellant did not meet the criteria for retention set out in relevant circulars.

The Appellant’s application was one of two received by the Respondent in 2016 and both of those applications were unsuccessful. The Respondent submitted that no aspect of any assessment of the Appellant’s application for retention was related to his having made a protected disclosure.

Evidence on behalf of the Respondent

The Respondent tendered evidence as follows:

Mr JH, HR Manager of the Respondent at the material time

Mr JH gave evidence to the effect that he had no knowledge of the Appellant’s protected disclosure until so informed by the Appellant in December 2015 and that he suspended the disciplinary process then in train as a result. He gave evidence that it was his judgement that to proceed with the disciplinary process while an investigation arising from the Appellant’s protected disclosure would be inappropriate. He gave evidence that he had no role in the protected disclosure and that the Assistant Secretary involved in that matter had no role in disciplinary proceedings which had commenced against the Appellant prior to December 2015. He also gave evidence that, while the investigation into his protected disclosure was completed in April 2016 the Appellant was absent through illness until August 2016 and that he did not consider it appropriate to advance a disciplinary process while the Appellant was certified unfit for work. He was on leave himself through August 2016 and consequently did not address the disciplinary matter in August. In September 2016 the issue of engagement to resolve matters was under consideration and so no resumption of disciplinary procedures was undertaken in September. When the Appellant declined the option of mediation at the end of September Mr JH was conscious of the Appellant’s impending retirement and the disciplinary process was never resumed.

Mr JH gave evidence that he had been advised by the Department of Public Expenditure and Reform in November 2015 that no applications for retention in employment could be considered at that time. Notwithstanding this advice, and the withdrawal of his application by the Appellant on 28^thNovember 2016, he did examine the potential eligibility of the Appellant for retention in accordance with the terms of the relevant circular and concluded that the Appellant was not, in any event, so eligible. The Appellant was advised of that assessment and requested the matter be considered further. Albeit there is no provision for appeal in the relevant circular the matter was referred to the Secretary General of the Respondent and she upheld the assessment of Mr JH in the matter.

Mr JK, a Regional Manager of the Respondent at the material time

Mr JK gave evidence that, as a security measure, inspectors should not keep official files at home. He also stated that it would not be normal for an inspector to hold files at home while on sick leave. He stated that the Appellant was engaging with employers, accessing active inspection files and accessing the status of those files while on sick leave. He said that at no time was there a suggestion of disciplining the Appellant in respect of these matters but rather it was a question of retrieving inspection files from the Appellant’s home and ensuring that he cease engaging with work issues while on sick leave. Ultimately the Appellant’s access to the citrix server was removed on 9^thMay 2016 and he was so advised.

Mr JK stated that he received a mail from the Appellant on 25^thJuly 2016 stating that he would return to work on the 27^thJuly. On 26^thJuly the Appellant contacted the Respondent to say that, because he had not been restored to the citrix system he would be taking a weeks leave rather than returning to work on the 27^thJuly.

Ms SL, The WRC Director of Legal Services at the material time

Ms SL gave evidence that she had become aware in July 2016 that the Appellant had initiated defamation proceeding against an employer arising from his work as an inspector. She was conscerned as regards perceptions of impartiality of Labour Inspectors and the interaction between the Appellant’s legal action and his role as a Labour Inspector. She sought details of the action from the Appellant in a letter dated 25^thJuly 2016 and also sought independent legal advice as regards the issue of the Appellant continuing to function as an inspector while such proceedings were in being.

Mr HL, HR Manager of the Respondent at the material time

Mr HL stated that he joined the HR Unit in April 2016. MR JH was on leave in August 2016 and the Appellant made contact in that period seeking information as regards retirement options and that information was provided to him.

The Law

Section 12(1) of the Act provides:

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.

It follows that a Complainant under the Act, if it is to be successful, must demonstrate (a) that he or she made one or more protected disclosures; (iii) that he or she suffered a detriment; and (iii) that there is a causal connection between the making of a protected disclosure and the detriment suffered. In essence it must be established that the detriment suffered by the Complainant would not have happened but for the making of the protected disclosure.

Discussion and conclusions

This Court has previously considered the test which a Complainant under the Act must satisfy in order to establish that he or she has suffered penalisation within the meaning of section 12(1) as a consequence of having made a protected disclosure i.e. in order to establish a causal connection between their protected disclosure and the detriment complained of. In Aidan & Henrietta McGrath partnership v Anna Monaghan (PDD162) the Court stated:

“… 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.”

The Appellant in the within matter has identified a number of matters which occurred in cognisable period for the within complaint which he contends were penalisations arising from his protected disclosure made in 2015.

The first of those matters was a failure on the part of the Respondent to re-activate a suspended disciplinary process which had been initiated by the Respondent against the Appellant in 2015. The Court can accept that the Appellant may have wished the process to be re-activated during the cognisable period of the within complaint but has heard from the Respondent that the reasons for continuing suspension of the process were related to the fact of the Appellant’s absence on sick leave until August 2016, the HR manager’s absence on annual leave throughout August 2016 and the fact that consideration was being given to a process of engagement to attempt to resolve matters throughout September 2016. Furthermore, the Respondent asserts that the fact of the Appellant’s impending retirement was the factor which led to a decision not to resume the proceedings between October 2016 and the Appellant’s retirement on January 2017.

The Court has been given evidence on behalf of the Respondent to support the reasoning submitted for the suspension of the disciplinary proceeding up to and including the retirement of the Appellant in January 2017. No evidence was tendered by the Appellant to support his assertion that the suspension of disciplinary proceedings was caused by his having made a protected disclosure in 2015. Mere assertions cannot be elevated by the Court to the status of evidence and, in the absence of any other material which makes a connection between his protected disclosure and the continued suspension of disciplinary proceedings throughout the cognisable period for the within complaint, the Court finds that the Appellant’s complaint in this regard has not been made out. In light of that finding, the Court concludes that it is unnecessary to address the contention of the Respondent that the suspension of a disciplinary procedure against the Appellant could not reasonably be considered a detriment to him within the meaning of the Act.

The second event submitted by the Appellant as constituting a penalisation within the meaning of the Act was the Respondent’s denial of access to the Respondent’s ICT system while he was absent on sick leave.

The Respondent has made submissions outlining its view that it owed a duty of care to the Appellant to ensure that he was not working while he was on sick leave and certified to be unfit for work. The submissions of the parties make clear that the reasoning behind this position was shared in correspondence from the Respondent to the Appellant on a number of occasions prior to the withdrawal of access to the Respondent’s ICT systems on 9^thMay 2016. The Appellant has asserted that the removal of access to the ICT system was caused by his having made a protected disclosure in 2015. He has not supported that assertion with evidence or any other material which would allow the Court to find that the removal of access from him in May 2016 caused by his having made a protected disclosure in 2015. Neither has he made submissions which address or undermine the proposition that the Respondent, as his employer, owed him a duty of care to ensure that he was not working while on sick leave and certified as unfit for work. In all of the circumstances therefore, the Court finds that the complaint that the removal of ICT access from him in May 2016 constituted penalisation of the Appellant within the meaning of the Act has not been made out.

The third event which the Appellant submits constitutes penalisation of him within the meaning of the Act was the alleged denial of access to the ICT system to him upon his return to work. It is clear to the Court that the Appellant, on his return to work, did not have immediate access to the full range of ICT facilities normally available to a Labour Inspector. A number of reasons have been submitted to explain that situation including issues related to pending legal advice and lack of clarity as regards the return to work arrangements of the Appellant. It has also been submitted that the Appellant chose to take annual leave in response to what he identified as inadequate access to ICT facilities upon his return to work.

The Court has examined the evidence of the Respondent and the submissions of both parties as regards this matter and finds that the assertion of the Appellant that any deficit in ICT facilities being made available to him on his return to work was caused by his having made a protected disclosure is not sufficient for the Court to find that this matter was a penalisation within the meaning of the Act. The Court finds that the evidence of the Respondent attributing the issue to a process of securing legal advice and confusion as regards the Appellant’s return to work arrangements represents a more credible proposition as regards the history of the Appellant’s access to the Respondent’s ICT system upon his return to work. The Court is fortified in its finding on this matter by the fact of restoration to the Appellant of full ICT facilities upon his actual return to work after leave.

In all of the circumstances therefore the Court finds that the complaint that any limitation in access to ICT facilities upon his return to work following an extended period of illness constituted penalisation of the Appellant within the meaning of the Act has not been made out.

The Appellant’s fourth complaint of penalisation within the cognisable period of the within complaint is his contention that, by seeking legal advice and making enquiries of him as regards a defamation action he had initiated against an employer with a business in his catchment area and who he had encountered in his role as a Labour Inspector, the Respondent had penalised him within the meaning of the Act. The Court finds the evidence of the Respondent in relation to this matter to be entirely credible, setting out as it does that the Respondent was concerned at the conduct of the defamation action in the context of the Appellant’s role as a Labour Inspector and had sought information in that regard from the Appellant and had sought legal advice related to the capacity of the Appellant to carry on his work as a Labour Inspector in light of that action. The Court finds the Appellant’s assertion that the Respondent’s actions in this matter arose because of his having made a protected disclosure in 2015 not be rational or credible. The Court therefore finds that the Appellant’s complaint in relation to this matter has not been made out.

Finally, the Appellant contends that the Respondent’s failure to accede to his request to be retained in his employment beyond his retirement age of 65 constituted a penalisation within the meaning of the Act and that the respondent’s failure to assess that he met the relevant criteria was also a penalisation. He made the within complaint on 15^thDecember 2016. Consequently, his complaint relates to events which occurred prior to 15^thDecember 2016.

The Court notes that the Appellant made an application under relevant circulars on 28^thOctober 2016. On 3^rdNovember 2016 the Respondent received an e-mail from Department of Public Expenditure and Reform which stated that, at that time, it was not possible to agree to requests to retain officers beyond their retirement age. The Court accepts the evidence of the HR manager of the Respondent that this information was communicated to the Appellant. The Appellant, for stated reasons, withdrew his application for retention on 28^thNovember 2016. In his e-mail withdrawing his application he requested clarity on the criteria by which qualification for retention is determined. The HR Manager gave evidence that he had subsequently examined the matter and concluded that the Appellant would not, in any event, meet the relevant qualifying criteria. That assessment was communicated to the Appellant before the date of his making the within complaint. Subsequent consideration of the matter, at the Appellant’s request, by the Secretary General of the Respondent, post-dated the making of the complaint. Any matter associated with the actions of the Secretary General in the matter is therefore not before the Court as part of the within complaint.

The Court notes that the Appellant does not accept the assessment of the Respondent’s HR manager as regards qualification for retention under relevant circulars. However, the Appellant has failed to produce any evidence of a causal connection, or to provide material which would support his contention that there was such a connection, between his protected disclosure of October 2015 and the Respondent’s assessment in December 2016 that he did not meet the qualifying criteria set out in relevant circulars for retention in his employment beyond the age of 65. In any event the Appellant had withdrawn his application for retention before the Respondent had addressed the Appellant’s request for clarity on the application of relevant criteria. Consequently, the Court cannot find that the Appellant could have suffered a detriment within the meaning of the Act as a result of the Respondent’s assessment, made subsequent to the Appellant’s withdrawal of his application, that he would not meet the criteria applicable to such an application. The matter was effectively moot at the point of the Respondent completing its assessment of the application of relevant criteria to the circumstances of the Appellant.

The Court has set out earlier that mere assertions cannot be elevated by the Court to the status of evidence and, in the absence of any other material which makes or supports a contention that there was a connection between his protected disclosure and the Respondent’s failure to agree to his request to be retained in employment, the Court finds that the Appellant’s complaint that the Respondent’s failure to accede to his application to be retained in employment, made in October 2016 and withdrawn on 28^thNovember 2016, was a penalisation within the meaning of the Act has not been made out.

For the reasons outlined above the Court finds that the Appellant has not made out a complaint that penalisation within the meaning of the Act occurred within the cognisable period of the within complaint.

Determination

The appeal fails and the decision of the Adjudication Officer is affirmed.

The Court so determines.

Signed on behalf of the Labour Court



Kevin Foley
20 August 2018______________________
THChairman



NOTE

Enquiries concerning this Determination should be addressed to Therese Hickey, Court Secretary.