PDD184

This matter came before the Court by way of an appeal brought by Mr John O’Brien (‘the Complainant’) against a decision of an Adjudication Officer (ADJ-00001721, dated 11 May 2017) under the Protected Disclosures Act 2014 (‘the Act’). The Adjudication Officer decided that the Complainant’s complaint of penalisation under the Act was not well-founded. The Complainant’s Notice of Appeal was received by the Court on 13 June 2017. The Court heard the appeal in Dublin on 21 July 2017 and 19 April 2018.

Submissions

The Complainant submits that he made two protected disclosures within the meaning of the Act. He submits that his first protected disclosure was made by way of a letter to the then recently-appointed Chief Executive of Fingal County Council (‘the Respondent’) on 14 April 2014 i.e. on a date that preceded the commencement of the Act. However, in the course of subsequent correspondence with the Respondent’s Chief Executive on 18 September 2014, the Complainant indicated that he wished to have his earlier correspondence treated as a protected disclosure within the meaning of the Act. The Respondent did not demur on this at the time and Mr James Waters, Solicitor, informed the Court that the Respondent was not seeking to challenge the protected nature of the disclosure in question. The subject of the protected disclosure concerned the relationship between the Respondent, the former League of Ireland football club, Sporting Fingal, and a registered company, Sporting Fingal FC Limited and related events that had occurred in 2011. The Chief Executive carried out a review of the file and materials furnished to him by the Complainant and advised the Complainant by letter dated 19 January 2015 that he had concluded that the matters raised by the Complainant had been dealt with in accordance with the relevant proper procedures and that there was nothing further to investigate. The Chief Executive had commissioned a separate and independent review of the matters raised by the Complainant. That review was undertaken by Mr John Fitzgerald whose report, dated 3 December 2014, was also furnished to the Complainant. Mr Fitzgerald had also concluded that no further investigation of the issues raised by the Complainant was required.

The Complainant submits that he made a second protected disclosure in relation to the same issues on 23 March 2015 as he was not satisfied with the conclusions arrived at by the Respondent’s Chief Executive (or indeed by Mr Fitzgerald) in relation to the issues the Complainant had raised in his first protected disclosure. The protected disclosure in the second instance was made by letter addressed to then Minister for the Environment, Community and Local Government, Mr Alan Kelly TD. Again, the Respondent does not dispute that the Complainant’s letter of 23 March 2015 constitutes a protected disclosure within the meaning of the Act.

The Complainant was, at all material times, a Senior Executive Officer (Divisional Manager) (Grade VIII) with the Respondent. He had been promoted to that grade on 22 March 2001 and remained at that grade until his voluntary retirement on 3 January 2017. He submits that he was penalised as a consequence of having made the aforementioned protected disclosures. That penalisation occurred principally, he submits, when the Respondent transferred him on 19 January 2016 from the position which he held up that date to a new role in its Planning and Strategic Infrastructure Department. He alleges that his new role was a demotion and resulted in him being marginalised and losing standing in the eyes of his colleagues. He describes the move as being “a very public humiliation” which resulted in his being “isolated by Mr Reid [the Chief Executive] and side-lined into a supernumerary and marginal role”. He accepts, however, that he suffered no reduction in salary or benefits resulting from his redeployment. The Respondent denies that the Complainant was demoted, ignored, marginalised, and/or isolated by the Respondent or its Chief Executive arising from the former’s protected disclosures or at all. The Respondent submits that the Complainant’s transfer in 2016 was effected for operational reasons only and as a part of a wider series of staff transfers that took place in or around that time which saw sixteen of the Respondent’s senior-level staff transferred in the four-month period between September 2015 and January 2016. It further submits that the role into which he was transferred was one which was appropriate to his grading level and one which required him to carry out functions and responsibilities on a par with other Divisional Managers operating at his level.

Witnesses

The Complainant appeared as a litigant in person before the Court and did not call any witnesses on his own behalf. The Respondent put up three witnesses: Mr Joe O’Reilly, Senior Executive Officer in the Respondent’s Human Resources Section; Mr John Quinlivan, Director of Corporate Governance with the Respondent; and Ms Annmarie Farrelly, Director of Services, Planning and Infrastructure Department. The latter witness was the Complainant’s line manager in the period following his reassignment and up until the date of his retirement.

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.”

• “… 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.”