PDD182

The Adjudication officer, in a decision dated 14^thJune 2017, found that the complaint before him was out of time and that the Adjudication officer lacked jurisdiction to hear the complaint. The appellant made his appeal to the court on 18^thJuly 2017.

Preliminary Issue

The Respondent raised the issue of time limits before the Court and contended that the complaint of the Appellant was made on 28^thAugust 2016 and that the matters which formed the basis of his complaint occurred before 28^thFebruary 2016 and consequently his complaint was out of time.

The Appellant submitted that he continued to be penalised until the date of his retirement on 24^thSeptember 2016 and consequently his complaint of penalisation in the period between 29^thFebruary 2016 and 28^thAugust 2016 was in time by reference to the Workplace Relations Act, 2015 (the Act of 2015) at Section 41 subsections (6) and (8).

The Court notes that the Appellant was on sick leave from 19^thDecember 2014 until his retirement on 27^thSeptember 2016.

The Act of 2015 at Section 41 (6) and 41(8) provides as follows

• 41(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.

  41(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.

Position of the Appellant

The Appellant submitted to the Court that the Appellant made what he contends is a protected disclosure within the meaning of the Act to his line manager on 2^ndSeptember 2014. He submitted that in consequence of his contended for protected disclosure he suffered the following penalisations in the period between 29^thFebruary 2016 and 28^thFebruary 2016.

• A request for payment under the Temporary Rehabilitation Remuneration (TRR) system was rejected by the Respondent and he was never properly advised of his non-entitlement to this payment.
• Payment for hours due to the appellant for the period prior to his sick leave was eventually paid but only after continued pursuance by the Appellant.
• Detail of the Retirement Gratuity amount due to the Appellant was only issued to him less than a week prior to his retirement. He submitted that he had to go to a lot of trouble in respect of this matter and that the Respondent had for example requested him to provide information in respect of his tax liability on his gratuity payment. In addition, he was advised that the payment was ultimately held up by the Respondent who advised him that they were awaiting direction from ‘Revenue’. The Appellant submitted that his local revenue office had advised him that no query had been received from the Respondent in this regard.
• Payment of outstanding annual leave pay made to him was only resolved following numerous phone calls to the respondent.

The Respondent rejected the contention that any of the matters submitted as penalisation by the Appellant could be described as either penalisation or could be connected with the Appellant’s contended for protected disclosure made to his line manager in September 2014. The Respondent also rejected the contention that the Appellant had made a protected disclosure within the meaning of the Act in September 2014 or at any other time.

The Respondent submitted that all payments due to the Appellant were made to him by the Respondent and that any delays or engagements with the Respondent in that regard were administrative in nature and were normal.

The Law

The jurisdiction of the Court under the Act as regards the matters arising in this case relates, in accordance with Schedule 2 of the Act, to the protection afforded by Section 12(1) of the Act to those who make a protected disclosure.

Section 12(1) of the Act provides as follows

• 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.

Protected disclosures

• 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 .

• (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,

• (d) that the health or safety of any individual has been, is being or is likely to be endangered,

• (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.

Discussion and Conclusions

The cognisable period for a complaint made on 28^thAugust 2016 is 29^thFebruary 2016 to 28^thAugust 2016. Four matters were submitted to the Court as constituting penalisation contrary to the Act in that period of time. It has been submitted that these events were as a result of the Appellant having made a protected disclosure in September 2014.

The Court has been provided with no detail of date or time, personnel involved or process in relation to any of the four matters of administrative activity contended to amount to penalisation. He submitted that although he received his entitlements in respect of all matters he had to go to a ‘lot of trouble’ to secure

• Payment for hours owed
• Confirmation that he was not entitled to TRR payments because of his superannuation arrangements
• Finalisation of his retirement gratuity payment
• Payment for annual leave

The Appellant declined to go into evidence at the hearing of the Court. The Respondent rejected any contention that any penalisation of the Appellant had occurred in the cognisable period for his complaint to the Workplace Relations Commission or at all.

The Court concludes that the Appellant has failed to provide specific details as regards any occurrences in the cognisable period for his complaint which he contends were acts of penalisation contrary to the Act. It is for the Appellant to set out the primary facts underpinning his complaint and to set out a causal connection between those facts and any alleged protected disclosure. The Appellant has not established those primary facts or made a causal connection between any such facts and any contended for protected disclosure made by him.

The Court finds that the Appellant was not penalised by the Respondent contrary to the Act.

Determination

The Court determines that the appellant was not penalised contrary to the Act at Section 12(1) and the appeal fails. The decision of the Adjudication Officer is varied to the extent set out above.

The Court so determines.

Signed on behalf of the Labour Court



Kevin Foley
19 February 2018______________________
MNChairman



NOTE

Enquiries concerning this Determination should be addressed to Michael Neville, Court Secretary.