ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00006182

Parties:

Complaint:

Date of Adjudication Hearing: 31/07/2017

Workplace Relations Commission Adjudication Officer: Aideen Collard

Procedure:

The Complainant referred the aforesaid complaint under Section 4 of the Protection of Persons Reporting Child Abuse Act 1998, against the Respondent to the Workplace Relations Commission (hereinafter ‘WRC’) on 24th November 2016. In accordance with Section 41 of the Workplace Relations Act 2015 and following referral to me by the Director General, I inquired into this complaint and gave the Parties an opportunity to be heard and to present any relevant evidence. I proceeded to hearing on 31st July 2017. The Complainant represented himself whilst the Respondent was represented by Ms Mary Fay BL, instructed by Pembroke Solicitors. As the Complainant was unrepresented, I outlined the relevant legal provisions and preliminary objection in lay terms. Further post-hearing submissions were received. All oral evidence, written submissions, supporting documentation and law presented by both Parties have been taken into consideration.

Background:

The Complainant contends that he was penalised by the Respondent, his former employer, for making a protected disclosure contrary to Section 4 of the Protection of Persons Reporting Child Abuse Act 1998. As a consequence of making same, he contends that he was penalised by being “bullied” into withdrawing his disclosure and his fixed-term contract was not renewed. The Respondent rejects the substantive complaint, but as a matter of preliminary objection, contends that the WRC does not have jurisdiction to hear it as the purported protected disclosure does not fall within the definition required to bring a complaint under the 1998 Act. I ruled that I would hear the preliminary objection first, and if finding in favour of the Complainant, would fix a hearing date for the substantive complaint, but if finding in favour of the Respondent my decision would simply issue.

Preliminary Objection to Jurisdiction of WRC to hear Complaint

Summary of Respondent’s Case:

Counsel for the Respondent outlined the background to this complaint along with the basis of its preliminary objection. The Respondent is a Charity which provides a range of services to adults with disabilities and has not catered for minors since the late 1970’s. The Complainant had previously been employed by the Respondent on a fixed-term contract covering maternity leave in 2013-14 without any issue arising. Latterly, he was employed by the Respondent as a Social Worker on a fixed-term, part-time contract from 29th February 2016, initially for a two-month period and then extended to 28th October 2016 as per signed contract furnished. The contract excluded the operation of the Unfair Dismissals Acts for any dismissal comprising merely of the expiry of the fixed-term period when it naturally came to an end. After a review taken by the Principal Social Worker, it was determined that a full-time Social Worker was required, rather than two job-share positions and his contract was not further renewed. The Complainant applied for the new position and was interviewed on 9th November 2016 before a two-person panel. He was not successful, having scored a lower overall score than the other two applicants, and was notified of same on 21st November 2016. Documentation pertaining to the recruitment process was also furnished to the WRC.

During his latter contract, the Complainant had sent a letter dated 27th May 2016 to the Respondent’s Managing Director, which he also enclosed with his complaint form and referred to it as a “letter of disclosure”. It sought to endorse the veracity of an anonymous complaint made to the Respondent in 2014 about an alleged relationship between a Senior Manager of the Respondent and X, referred to as “a client” in or around 1994/1995 when X “may have been 19/20 years old”. He stated that he had socialised with the Senior Manager and X around this time and his “understanding was that they were living together in a relationship” and “the person who wrote this letter is not telling a lie.”.As with the initial complaint, his letter was fully investigated by the relevant authorities and discounted. He was spoken to by the Managing Director as part of the requisite preliminary screening, and could not produce any evidence of an inappropriate relationship between the Senior Manager and X other than his subjective opinion. It also materialised that X may not have been a client of the Respondent at the material time. Nor was there any issue as to the mental capacity of X. The Complainant was asked to reflect on the matter and he retracted his letter in part initially, and subsequently in full. The Respondent criticised his lack of discretion and denied that he had been bullied or penalised, either in relation to the withdrawal of his letter, by the non-renewal of his fixed-term contract and treatment in the recruitment process for the new role. Various arguments were made in this respect which are not relevant to the preliminary issue.

Counsel referred to the wording of Section 4(1) of the Protection of Persons Reporting Child Abuse Act 1998 which states: “An employer shall not penalise an employee for having formed an opinion of the kind referred to in section 3 of this Act and communicated it, whether in writing or otherwise, to an appropriate person if the employee has acted reasonably and in good faith in forming that opinion and communicating it to the appropriate person.”.As set out in Section 3 of the Act, an “opinion of the kind referred to in section 3” is clearly referable to an opinion of child abuse, that is an opinion that “…a child has been or is being assaulted, ill-treated, neglected or sexually abused, or a child’s health, development or welfare has been or is been avoidably impaired or neglected,”.Section 1 of the Act clearly defines a child as being “…a person who has not attained 18 years of age;”.There is no suggestion, even on the Complainant’s version of events that X, the alleged victim was under the age of 18. Indeed, he estimated that X was 19-20 years old at the relevant time. In summary, Counsel submitted that as the definition of a child under the Act is referable solely to age, even on an uncontested examination of the Complainant’s version of events, it is clear that any opinion allegedly formed and/or disclosed does not relate to a child. Therefore, he cannot invoke jurisdiction under the Act, and his complaint should be struck out for want of jurisdiction. For the record, Counsel also confirmed that she would be objecting to any amendment to this complaint.

Summary of Complainant’s Case:

There is no dispute between the Parties in terms of the Complainant’s history of employment with the Respondent and the nature of his disclosure as outlined above. However, in his complaint form, the Complainant submits that his letter of 27th May 2016 amounts to a disclosure for the purposes of a complaint of penalisation under Section 4 of the Protection of Persons Reporting Child Abuse Act 1998. In particular, he contends that he was “bullied” into retracting this letter under threat of litigation and that his fixed-term contract was not renewed as a direct consequence of same. Instead, a one year fixed-term, full-time contract position was advertised, which he applied for but was not successful following interview. Regarding the recruitment process adopted, he stated: “I was given feedback from the interviewers which stated that I did not score as highly on the competency based assessment as others. I have accepted that that was the assessment of the interviewers. However I do not consider that that was the only influence on the outcome and that I have been penalised by not being selected for the position because of my disclosure in my letter about a Senior Manager...”. To provide some personal and professional context to his situation, he outlined his extensive experience in the relevant area. He had also previously worked for the Respondent without there ever being any concern about his practice. Generally, feedback from service users, their families and other professionals was that his work was exemplary. Therefore, he cannot see any reason why he was not deemed suitable for the position other than his disclosure.

I explained to the Complainant that before I could investigate his substantive complaint of penalisation, I firstly had to be satisfied that his disclosure fell within the definition provided by the 1998 Act as outlined. In this respect, he conceded that X, the alleged victim was an adult over the age of 18 at the material time of the alleged inappropriate relationship with the Respondent’s Senior Manager. He also confirmed that at the material time, X was probably not a client of the Respondent and may have been working alongside the Senior Manager. When asked why he had referred his complaint under the 1998 Act, he said that he was representing himself and could not find a legislative provision that dealt with “adult abuse”. However, when further questioned, he stated that he had viewed the nature of the relationship between the Senior Manager in question and X, as being “inappropriate” but he was not suggesting that it was unlawful in any respect.

I confirmed that before deciding this preliminary issue, I would afford the Complainant a period of time to avail of appropriate advice, and to make submissions as to why his complaint falls within the 1998 Act and/or whether it falls under any other piece of protective legislation including the Protected Disclosures Act 2014, along with the basis for same, so long as the nature of the complaint remained the same. The Complainant submitted a letter dated 21st August 2017 to the WRC, stating that he had availed of legal advice and wished to amend his complaint to one under the Protected Disclosures Act 2014, and sought an extension of time for the purposes of same. He made further submissions regarding his substantive complaint of penalisation enclosing supporting documentation including interviews about his disclosure, but did not elaborate upon how his complaint fell within the definition of a protected disclosure under that 2014 Act. The Complainant was afforded a further period of time to make submissions as to how his complaint fell within the 2014 Act but none were received within the time allowed or to date. In the absence of same, the Respondent wrote confirming that it would be premature to make further submissions on the issue.

Findings and Conclusions:

Firstly, I note that as the dates of the alleged penalisation ranged from 27th May 2016 until 16th November 2016 and the date of referral of this complaint is 24th November 2016, there is no issue that it has been made within time. To determine the preliminary issue of whether or not the Complainant’s disclosure falls within the definition required to make a complaint of penalisation under Section 4 of the Persons Reporting Child Abuse Act 1998, it is necessary to examine the evidence adduced in light of the relevant legislation. Section 4(1) of the 1998 Act provides: “An employer shall not penalise an employee for having formed an opinion of the kind referred to in section 3 of this Act and communicated it, whether in writing or otherwise, to an appropriate person if the employee has acted reasonably and in good faith in forming that opinion and communicating it to the appropriate person”. The remainder of Section 4 provides for the referral of a complaint of penalisation, seemingly a little-utilised provision. Section 4(1A) of the 1998 Act distinguishes a disclosure under that Act from one under the Protected Disclosures Act 2014, and Section 4(3) prohibits recovery from parallel complaints under both Acts. Section 3 of the 1998 Act provides for immunity from civil suit and defines a protected disclosure under the Act as “…a communication, whether in writing or otherwise, by him or her to an appropriate person of his or her opinion that- (a) a child has been or is being assaulted, ill-treated, neglected or sexually abused, or (b) a child’s health, development or welfare has been or is being avoidably impaired or neglected, unless it is proved that he or she has not acted reasonably and in good faith in forming that opinion and communicating it to the appropriate person.”. Section 1(1) of the 1998 Act defines a child as follows: “In this Act, unless the context otherwise requires- “child” means a person who has not attained 18 years of age;”.

Giving these provisions their literal meaning, I am satisfied that the 1998 Act is solely referable to a disclosure of the nature of child abuse as defined in Section 3, and relates to a person under the age of 18 years of age. Taking the Complainant’s evidence at its height, there is no dispute that his disclosure pertained to a person over the age of 18 years, in circumstances where he placed X, the alleged victim to be 19-20 years of age at the material time of the alleged inappropriate relationship.I therefore find that as the Complainant’s disclosure does not fall within the definition required to bring a complaint under Section 4 of the Persons Reporting Child Abuse Act 1998, I do not have jurisdiction to hear the substantive complaint of penalisation. Having found that the Complainant’s evidence falls short in relation to this fundamental prerequisite, further analysis of whether his disclosure constituted a disclosure within the meaning of Section 3 is therefore unnecessary.

For the sake of completeness, I have also considered the Complainant’s application to amend his complaint to that of one under the Protected Disclosures Act 2014. I note that he has not provided any factual/legal basis for this application despite being afforded several opportunities to do so. In any event, I have examined his evidence taken at its height and I am satisfied that his letter of 27th May 2016 could not conceivably constitute a disclosure defined by Section 5 of the Act as follows:

“(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.

(3) The following matters are relevant wrongdoings for the purposes of this Act-

(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.”

Section 5(8) also provides that: “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.”.In this respect and in the absence of any evidence to the contrary, I am satisfied as a matter of probability, that the letter written by the Complainant is not a protected disclosure within the meaning of Section 5 of the Protected Disclosures Act 2014 and accordingly refuse his application to amend his complaint.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to this complaint. Based upon the aforesaid, I find that the Complainant has not made a disclosure for the purposes of a complaint under Section 4 the Protection of Persons Reporting Child Abuse Act 1998, or indeed any other piece of protective legislation. Therefore, I do not have jurisdiction to hear the substantive complaint of penalisation and accordingly dismiss this complaint as being unfounded. I also refuse the application to amend the complaint to one under the Protected Disclosures Act 2014.

Dated:   07/03/18

Workplace Relations Commission Adjudication Officer: Aideen Collard

Key Words: Protected Disclosure – Preliminary Objection to Jurisdiction – Protection of Persons Reporting Child Abuse Act 1998 – Protected Disclosures Act 2014 – Application to Amend Complaint