Complainant

Respondent

Anonymised Parties

An Employee

Public Body

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-00007777-001

24/10/2016

The complainant contends that he was penalised or threatened with penalisation by his employer for having made a protected disclosure under the Protected Disclosures Act 2014.

The complainant is employed by the respondent since June 1994. He started to provide relief work in the kitchen in 1998. He received training in food hygiene and basic cookery skills and for a period of twelve years he provided ad hoc relief cover in the kitchen. In 2007 he completed a basic cookery skills course and a basic catering hygiene course and completed a management of food hygiene course with distinction in 2013.   In 2010 he was unsuccessful in his application for promotion to Kitchen position due to lack of qualifications. In September 2012 a local order was made removing the need for qualifications to work in the kitchen and as a result the complainant’s ad hoc secondments dropped to one third of the previous placements. This resulted in a substantial lowering of experience available to him if he was to receive promotion. In January 2013 he received a qualification in food hygiene, which would have given him a very strong chance of promotion. Later in 2013 he applied for promotion but failed due to lack of experience This was a direct result of the local order made on 6 September 2012 and he therefore raised a concern about the use of non-qualified staff when qualified staff were available. Since September 2013 the complainant has never got a placement in catering despite remaining number 1 on the panel.                                                       The complainant having felt aggrieved at the lack of promotion despite having the appropriate experience and qualifications raised the matter with various management and other authorities during 2013 and 2014, and ultimately by way of Protected Disclosure on 7 March 2016.                        The Protected Disclosure is summarised as follows:

The assignment of unqualified staff by the respondent to perform tasks requiring qualifications when qualified staff were available constituted an inefficient use of tax payers funds, was not compliant with EC Regulation 852/2014 and that the assignment of unqualified staff in the gym areas was a breach of Health & Safety.

Following procedures, the Internal Audit Unit investigated the disclosure. The unit found that none of the allegations made by the complainant were upheld. The complainant appealed that decision on 19th August 2016 to an External Reviewer as provided for in procedures. The External Reviewer reported on 10th February 2017 and found inter alia that “the discloser was treated unfairly and was isolated for making the disclosures, and that his opportunities for career advancement were deliberately curtailed by the (respondent)”. The External Reviewer further found that the respondent “did not comply with its own standards as laid out in its policy and that it did not address with sufficient seriousness the concerns of the discloser, and further penalised him for pursuing his complaints”.                                      

The complainant applies for an extension of time under Section 1 (7) of Schedule 2 in that the complainant was still involved in the internal appeal procedure of the respondent until he received the External Reviewer’s report.

In the Act, penalisation is described as any act, or omission that affects a worker to the worker’s detriment and in particular includes suspension, layoff or dismissal, demotion or loss of opportunity for promotion, the imposition or administering of any discipline or reprimand or other penalty, unfair treatment, coercion, intimidation or harassment, discrimination, disadvantage or unfair treatment, injury damage or loss, and threat of reprisal.                            

The complainant says he suffered penalisation summarised as follows:

After he complained to the management about possible breach of Health & Safety Regulations he was not again assigned to the kitchen and has not served in that section since on or about September 2013. This has resulted in the lack of experience which denied him promotional opportunities which would have earned him an increased basic wage of €6,000 per annum.

It is also submitted that since in or about 2014 the complainant has been assigned to work constantly with staff that are much junior to him and rarely if ever is assigned to work with his peers, and when assigned with more junior staff has never been assigned as supervisor. This belittles his standing and despite raising the issue has had no substantive response.  

The complainant was subjected to unnecessary disciplinary sanction when management alleged he had been rostered to attend for additional hours on four days but had failed to report. He was being disciplined and that included reducing his annualised hours band with a commensurate reduction of €4,000 per annum. There were explanations for his absences and indeed the explanations were attached to the documentation handed to him. When he appealed, the letter of sanction was simply withdrawn.

The complainant’s pay was stopped due to exceeding the sick leave limit in August 2016. However pay should have been reinstated from 23rd August 2016 but was not. When he contacted Payroll, they told him they had not been informed by local management that he had returned to work. No proper explanation has ever been forthcoming as to how the complainant could have worked for three to four weeks without the respondent seeming to know.   He was eventually furnished with an email which stated it was an error.

The complainant was advised in June 2016 that due to his lifestyle choices he might be better off with a transfer. This implied that due to his protected disclosure he was not welcome in his particular workplace.

An incident was described where he was not consulted by an Investigator into a serious incident which occurred in March 2015 despite the complainant being a first hand witness.           Another incident was described where in February 2015 the complainant and his wife considered they were under surveillance and the matter was a serious issue reported to Gardai and management on 23rd February 2015 and appropriate Protocol was initiated. The complainant upgraded security on his home and naturally was extremely concerned.   The complainant asked several times from management if there had been any response from the Gardai, but was told nothing was heard from them. The complainant wrote to management on 27th July 2016 outlining in detail the enormous affect the continued threat was having on him and his family’s life. Management replied that it understood that the matter was progressed to HQ. The complainant subsequently discovered that the Gardai had advised local management on 1st April 2015 that there was no threat to the complainant and his family. The local manager thanked the Gardai for their prompt reply on 8th April 2015 but did not advise the complainant.

It is argued that there is a causal link between the complainant’s protected disclosure and the adverse treatment he received. It is argued that this is verified and validated by the findings of the External Reviewer who concluded that the complainant was treated unfairly and was isolated for making the disclosures and that his opportunities for career advancement were deliberately curtailed. At a senior level, from two fronts, the respondent subsequently wrote to the complainant apologising for the distress caused to him and his family as a result of the manner in which his complaints were addressed and recognised that there were shortcomings in the initial investigation.

It is argued that maximum damages should be awarded in this case in accordance with the Von Coulson and Kamann v Land Nordrhein-Westfallen case which requires sanctions to act as a real deterrent for employers.  

The disclosure which is the subject of this complaint, was referred to the Internal Audit Unit and while there was acknowledgement that issues concerning communications between the complainant and management could be improved it concluded that the complainant’s submission was not a protected disclosure within the meaning of the Act. The complainant was unhappy with these conclusions and in accordance with procedures an External Reviewer was asked to carry out a review. The Reviewer ultimately issued his findings on 7th February 2017. However, the complainant in bypassing the final stage, had submitted his complaint to the WRC in October 2016. In seeking to go directly to the WRC in order to pursue redress, the complainant chose to have his complaint determined by the WRC effectively separately from the external review. It is therefore argued that the adjudication hearing is a de novo consideration of the Internal Audit findings dated 16th August 2016 and any acts of penalisation arising from the said disclosure that the complainant claims to have experienced up to 24th October 2016, the date on which he lodged his complaints.         (Detailed arguments were submitted outlining why the respondent did not consider the complainant’s complaints to have been protected disclosures – these were later withdrawn subsequent to the first hearing, however it was also argued that personal grievances were in evidence which could have been progressed through the respondent’s Grievance Procedures.)  

In relation to staffing panels, the complainant would be aware that these panels are agreed in accordance with policy by management and staff association whereby staff are allocated particular duties for a number of years and are placed on these panels in order of seniority. The most senior will be detailed a posting of their request and they are changed over every two or three years, i.e. in 2009, 2011, 2014 and 2016. The staff have to move if they have worked in two previous panels unless no one else is looking for a particular panel.   The complainant’s last four panels were

2009 – No. 2 on Kitchen Relief

2011- No. 2 on Reception

2014 – No. 2 on E3 Class

2016 – No. 2 on Kitchen Relief.

In his complaint, the complainant identifies two categories of penalisation that he claims he suffered as a result of making his disclosure on 7th March 2016.   They are:

That his pay was stopped for a month as a result of making his disclosure and

He has been subject to spurious disciplinary procedures.

Details of the administrative errors which resulted in incorrect recording of the complainant’s back to work hours in February/March 2016 were outlined, offer of working hours back for additional hours not worked in July 2016, and the withdrawal of the disciplinary letter when management noted that the complainant’s intention to work up two nominated days in September 2016. All these actions by management, it is submitted are entirely reasonable and could not be in any way characterised as penalisation.   In October the complainant complained that he had been suffering bullying and harassment which allegations were replied to by Corporate Services in great detail. It is strongly submitted that there is absolutely no basis to suggest that administrative interactions were ‘retaliatory acts’ arising from the disclosure made by the complainant on 7th March 2016. At a fundamental level, it is the case that up to September 2016, management involved had no knowledge that the complainant had made a protected disclosure.                         Ultimately to succeed in the claim it will be necessary for the complainant to show a clear causal link between the disclosure he made on 7th March 2016 and the incidents of penalisation which he claims he has been subject to.   Labour Court decisions Aidan and Henrietta McGrath Partnership v Monaghan PDD 2/2016 and O’Neill v Toni and Guy Blackrock Limited [2010] E.L.R. 21 were cited in support of the point that in order to make out a complaint of penalisation it is necessary for a complainant to establish that the detriment that he or she complains of was imposed “for” having committed one of the acts protected by the relevant section of the Act.

Time limit

Schedule 2 of the Act provides:

“(6) Subject to sub paragraphs (7) and (8), a rights commissioner shall not entertain a complaint under this paragraph if presented after the end of the period of six months beginning on the date to which the contravention relates.

(7) Notwithstanding sub paragraph (6), a rights commissioner may entertain a complaint under this paragraph presented after the end of the period referred to in sub paragraph (6) but not later than six months after the end of that period if satisfied that the failure to present the complaint in that period was due to exceptional circumstances”.

This complaint, received on 24th October 2016 stated that the complainant made a protected disclosure on 7th March 2016 and a report issued on 16th August 2016 and that since that date the complainant’s pay had been stopped and he had been subject to spurious disciplinary procedures.             There is a long history of the complainant’s issues, dating back to 2013 from when, (his evidence was) he was never assigned to kitchen duties, having worked there for a number of years on and off as a relief worker.   I have considered the application by the complainant for an extension of time on the basis that the complainant was still involved in the internal appeal procedure. I do not consider that exceptional circumstances (which must be unusual, out of the ordinary) and I do not agree to extend the time limit.   For the purposes of this instant case, I have the reviewed the evidence and submissions concerning events that took place from 25th April 2016, in accordance with the time limit imposed by Schedule 2 Sub paragraph 6 of the Act.

Substantive issues and the applicable 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 is now not in dispute that the complainant made a protected disclosure on 7th March 2016 of inefficient use of taxpayers funds.   On 16th August 2016 the Internal Audit report did not uphold his complaints and on 24th October 2016 the complainant referred his complaints to the WRC.   I note the complaint to the WRC was referred before the outcome of an internal appeal. I note the result of the internal appeal was largely in favour of the complainant.   However, as this instant case comes before me under the terms of the Protected Disclosures Act 2014, I am basing my findings and recommendations within the parameters of that Act and within the time limit as provided for in the Act.