ADJ-00008761

ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00008761

Parties:

 Complaint:

Date of Adjudication Hearing: 19/04/2018

Workplace Relations Commission Adjudication Officer: Gerry Rooney

Procedure: In accordance with Section 41 of the Workplace Relations Act, 2015 and Schedule 2 of the Protected Disclosures Act, 2014following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint. 

Background:

The Complainant, a School Teacher, has alleged that he has been penalised following the raising of a protected disclosure to the Board of Management. 

Summary of Complainant’s Case:

The Complainant is a schoolteacher with responsibilities for ITC within the School. He commenced his employment on 1st September 2003 and is employed for 22 hours a week.

The Complainant maintained that he raised concerns in relation to matters he discovered in the course of his duties with regard to access to, and information that had been posted on, student accounts by another member of staff. The Complainant submitted that having reported same to the Board of Management that he was subject to penalisation contrary to Section 12 of the Act.

Specifically, the Complainant alleged that he observed postings on a student account being made at 2:30 am in the morning and where the student brought this to his attention. He also observed the member of staff accessing computers and raised this with the School Principal. The Complainant was asked to provide a report of the matters he discovered.

The Complainant submitted the report where the Board of Management appointed a person to investigate the concerns raised.

The Complainant submitted that the person appointed by the Board of Management to conduct the investigation of the concerns was not impartial and was prejudiced and biased in relation to the matters under investigation. In this regard the Complainant maintained that the investigator was a member of an ETB and where members of the school’s board of management were also members of the ETB and would have had an association with the investigator.

The outcome of the investigation was that the Complainant’s concerns were not upheld and where a conclusion was drawn that he may have been motivated by malice in raising his concerns against the employee.

The Complainant advised that he was invited into a disciplinary procedure and was threatened with dismissal as a consequence of raising his concerns. The Complainant maintained that his concerns related to child protection issues and where a threat of dismissal and the reaction of the Respondent caused him great concern and necessitated him seeking legal advice where a solicitor’s letter was issued to the Respondent seeking for the disciplinary procedure to cease, and indicating that the Complainant had protection in accordance with section 5 of the Protected Disclosures Act 2014.

The Complainant further submitted that there were unclear role descriptions between his role and that of the role of one of the persons he alleged of the wrongdoing. The Complainant maintained that this person was interfering in ICT matters and in areas that the Complainant understood was his responsibility. He therefore argued that it was unclear exactly what he was responsible for in relation to ICT matters within the school. This issue was raised a number of times during the hearing by the Complaint and his representative, who presented this mater in an adversarial tone. This issue appeared to be a particular concern for the Complainant.

Summary of Respondent’s Case:

The Respondent submitted that the Complainant had raised concerns in relation to access to student accounts on the IT system. When these matters were brought to the attention of the Board of Management the Principal of the School asked the Complainant to provide evidence in relation to the concerns. The Respondent provided two submissions, one on 18th January 2017, and a second submission on 4th February 2017.

The Respondent advised that in the Complainant’s submission the Complainant, inter alia reported named persons had uploaded files on a female student’s account, had viewed video files of students on the system late at night, was involved in online grooming of a student, had generated an inordinate amount of emails on the system, and where a person allowed access to another person to a school group on the system which allowed files to be shared. The Respondent also maintained the Complaint inferred the School Principal as the Designated Contact Person for Child Protection matters had not acted appropriately in reporting the concerns to the Child & Family Agency when they were first made.

Following receipt of the Complainant’s submissions which had highlighted the aforementioned issues, the Respondent commissioned an investigation of the allegations reported by the Complainant. The Respondent maintained this investigation was conducted by an external and experienced ICT person and concluded that some of the matters raised in the investigation, albeit a very small part of what was investigated, led to a conclusion that the complaints were malicious. No concerns of child protection were identified in the external review, and where the ICT activities of those identified by the Complainant were found to be reasonable and part of legitimate supports requested by others in the school, and were created as a support to the teaching function. The Respondent argued the activities reported by the Complainant found to be were purely ICT related and where the evidence adduced along with subsequent information, corroborated that the Complainant should reasonably have known the incidents reported by him were not of a child protection issue. Additionally, it was found that access to the student group had been approved by the owner of that group. Any images and files uploaded referred to academic work. It was also adduced that the school girl who initially raised the question with the Complainant had not inferred any child protection concerns.

The Respondent maintained that the external investigation identified that the access to ,and uploading of files, was conducted by a system administrator employed by the school. It has subsequently been concluded that the so called inappropriate messages to the female student were standard default messages generated by the Microsoft package. Information in relation to this matter was presented at the hearing within.

The Respondent denied that the person appointed to review the Complainant’s investigation was biased. The Respondent submitted that the person appointed to conduct the review had ICT experience, was impartial, and where the school has no relationship with the educational institution that the investigator came from.

Following a review of the external report, where concerns were raised regarding the Complainant’s motivation and the Complainant’s interpterion of the events, the Principal initiated a disciplinary procedure in May 2017 to address the allegations that had been made by the Complainant against the named parties.

The Respondent maintained that the Complainant did not have protection under section 5 of the Protected Disclosures Act in that it was not reasonable for the Complainant to hold that the persons he complained about were committing a relevant wrongdoing. Furthermore, the Respondent argued that in accordance with Section 5(5) of the Act, the matter was not a relevant wrongdoing as it was the function of the Complainant in his capacity of IT Coordinator to detect and investigate. The Respondent further stated that the complaint did not involve an act or omission on the part of the Respondent. The Respondent maintained that when the issues were raised by the Complainant in his capacity as IT Coordinator the Board of Management acted to investigate the matters. Additionally, the Respondent contended that none of the issue raised by the Complainant in his submissions from November 2016 to February 2017 contained information that could reasonably be regarded as matters relating to child protection or amounted to a relevant wrong doing under Section 3 of the Protected Disclosures Act, 2014.

Therefore, the Respondent submitted that the Complainant had an obligation to make the report, which he did, and there was no act or omission on its behalf in its handling of the concerns raised by the Complainant.

It further maintained that, as asserted to by the Complainant in his complaint to the WRC, the Complainant had in fact an obligation to report such matters and where these obligations rested in his employment relationship where child protection procedures require a teacher to report concerns. The Respondent also contended that the Complainant’s ICT role obliged the Complainant to report any concerns in relation to data protection and related matters. As such the Respondent submitted that the Complainant did not have protection accordance with section 5(5) of the Act.

The Respondent advised that the independent investigation opinioned that the Complainant complaints were intended to reflect negatively on one of the named persons. As such the Respondent inferred the Complainant acts were potentially malicious and they warranted an disciplinary investigation.

The Respondent further advised that the Complainant had raised a grievance in 2014 in relation to the crossover of roles and responsibilities between himself and the employee he reported. The outcome of that grievance clarified the roles of the Complainant and of the other employee. As such the Respondent indicated there was history between the parties and that was a factor to be considered in relation to the case within.

Findings and Conclusions:

Section 5 of the Protected Disclosures Act 2014 contains an exhaustive definition of ‘protected disclosure’: “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.

Section 5(2) states 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.

The Complainant argues that he made a protected disclosure on 16th November 2016, and in subsequent submissions in January and February 2018 where this disclosure related to potential child protection issues due to the abuse of the IT system by certain named parties.

Section 12 of the Protected Disclosures Act, 2014 states -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 Protected Disclosures Act includes in its definition of penalisation ‘demotion or loss of opportunity for promotion, transfer of duties, change of location of work etc., unfair treatment, or the threat of reprisal’, among others.

The Complainant submitted that the intention to conduct a disciplinary hearing against him was a penalisation by virtue of the fact that he was reporting a relevant wrongdoing with regard to a child protection issue, and where he was threatened with a reprisal for his protected actions.

With regard to the relevant wrongdoing, the Complainant had reported that a named party, by accessing a student’s IT account, by uploading files and by issuing an email was grooming a female student; where the actions the same person and other named parties by accessing and operating the IT system amounted to impropriety along the lines of grooming; and where a named part accessed material they were not entitled to have access to. In addition, the Complainant inferred the School Principal by not properly reporting the matter in his role of Designated Person had committed a wrongdoing.

In section 5(5) of the Act, [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. As such any wrongdoing which is the employee’s or the employer’s function to detect, investigate or prosecute does not come within the terms of the Act.

Having considered the evidence presented I find that the complaint fails for two reasons, namely:

1. The complaint is not deemed to be a protected disclosure as it has failed to satisfy section 5(2) of the Act, in that based on the evidence presented the IT knowledge of the Complainant could not support that he could reasonably have held the belief that the named parties were in fact involved in a relevant wrongdoing. I therefore do not find the Complaint’s assertions that the named parties were involved in a relevant wrongdoing to be credible. It is noted a key person alleged of the wrongdoing holds the role of IT System Administrator, and where the Complainant appears to be in dispute with the Respondent regarding the crossover of his role with that of the system administrator. 
2. The complaint is not deemed to be a protected disclosure as it has failed to satisfy section 5(5) of the Act, in that the concerns raised by the Complainant are a matter which is the function of the Complainant to detect and investigate. As the Respondent acted on the complaint I do not find there was any act or omission on behalf of the Respondent that would amount to a relevant wrongdoing. I find that the concerns raised by the Complainant were acted upon appropriately, and were subject to an independent investigation.

I therefore find that the Complainant did not make a protected disclosure as defined by the Act.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.

Having carefully considered the parties’ submissions and the totality of the evidence put before me, I decide that the claim advanced by the Complainant is not well-founded.

Dated:   October 16th 2018

Workplace Relations Commission Adjudication Officer: Gerry Rooney

Key Words: