Complainant

Respondent

Anonymised Parties

A retired civil servant

A Government Department

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Schedule 2 of the Protected Disclosures Act, 2014

CA-00014642-001

28/09/2017

The complainant claims that the respondent penalised him for making protected disclosures regarding an inspectorate run by a public body under the auspices of the respondent. The respondent denies the claim.

The complainant outlined that he wished to challenge the unfair exclusion of his application to be retained in the civil service. He outlined that a mediation process had taken five months and it was reasonable to say that this was dragged out. He asked the public body what issues would be included in the mediation and specifically asked that the retention issue be included. This was the main issue addressed in the mediation. The public body later submitted that the issue of the retention application should be excluded. It also took the Workplace Relations Commission nine months to say that they could not schedule a hearing into his Industrial Relations dispute.

In respect of the application to extend time, the respondent stated that it vehemently refuted the allegation of creating delays. The complainant had complained to the Workplace Relations Commission in December 2016, but did not include the issue of the retention application. This was the point raised by the respondent in submissions at the adjudication of the 27th September 2017.

The respondent stated that it responded to this new point raised more than six months after the complaint. While the complainant also brought a dispute pursuant to the Industrial Relations Act, this could not proceed as he was a civil servant. The mediation process could have worked and cannot be criticised retrospectively. The respondent submitted that there was no contriving to keep the complainant out and this issue arose from the application of statutory time limits. The complainant could have been raised the retention issue in the months after the end of his employment and he did not have grounds for reasonable cause.

The respondent submitted that the matter of the complainant’s retention was dealt with at the last adjudication, where findings were made. It submitted that this complaint was an abuse of process. It relied on Teagasc v Sorenson (EDA1723).

The respondent submitted that the delay was caused by how the complainant had originally framed the complaint. He could have referred a complaint after the end of the mediation in June 2017 but did not do so.

At the adjudication of ADJ 6381, the respondent Department sought to exclude the issues arising from the complainant’s application for retention in the civil service as part of his penalisation complaint. I declined to follow the approach suggested by the respondent and considered the application for retention in full. As set out in the report for ADJ 6381, I found that the complainant had not shown that the manner in which his application for retention was not approved was related to the protected disclosures. In turn, the complainant appealed my decision. On the 20th August 2018, the Labour Court concluded as follows in respect of this aspect of the complaint:

“Finally, the Appellant contends that the Respondent’s failure to accede to his request to be retained in his employment beyond his retirement age of 65 constituted a penalisation within the meaning of the Act and that the respondent’s failure to assess that he met the relevant criteria was also a penalisation. He made the within complaint on 15th December 2016. Consequently, his complaint relates to events which occurred prior to 15th December 2016.

The Court notes that the Appellant made an application under relevant circulars on 28th October 2016. On 3rd November 2016 the Respondent received an e-mail from Department of Public Expenditure and Reform which stated that, at that time, it was not possible to agree to requests to retain officers beyond their retirement age. The Court accepts the evidence of the HR manager of the Respondent that this information was communicated to the Appellant. The Appellant, for stated reasons, withdrew his application for retention on 28th November 2016. In his e-mail withdrawing his application he requested clarity on the criteria by which qualification for retention is determined. The HR Manager gave evidence that he had subsequently examined the matter and concluded that the Appellant would not, in any event, meet the relevant qualifying criteria. That assessment was communicated to the Appellant before the date of his making the within complaint. Subsequent consideration of the matter, at the Appellant’s request, by the Secretary General of the Respondent, post-dated the making of the complaint. Any matter associated with the actions of the Secretary General in the matter is therefore not before the Court as part of the within complaint.

The Court notes that the Appellant does not accept the assessment of the Respondent’s HR manager as regards qualification for retention under relevant circulars. However, the Appellant has failed to produce any evidence of a causal connection, or to provide material which would support his contention that there was such a connection, between his protected disclosure of October 2015 and the Respondent’s assessment in December 2016 that he did not meet the qualifying criteria set out in relevant circulars for retention in his employment beyond the age of 65. In any event the Appellant had withdrawn his application for retention before the Respondent had addressed the Appellant’s request for clarity on the application of relevant criteria. Consequently, the Court cannot find that the Appellant could have suffered a detriment within the meaning of the Act as a result of the Respondent’s assessment, made subsequent to the Appellant’s withdrawal of his application, that he would not meet the criteria applicable to such an application. The matter was effectively moot at the point of the Respondent completing its assessment of the application of relevant criteria to the circumstances of the Appellant.

The Court has set out earlier that mere assertions cannot be elevated by the Court to the status of evidence and, in the absence of any other material which makes or supports a contention that there was a connection between his protected disclosure and the Respondent’s failure to agree to his request to be retained in employment, the Court finds that the Appellant’s complaint that the Respondent’s failure to accede to his application to be retained in employment, made in October 2016 and withdrawn on 28th November 2016, was a penalisation within the meaning of the Act has not been made out.”

It is clear from the Labour Court decision that the matters up to the referral to the respondent Secretary General have been adjudicated upon by the Labour Court. The only issue remaining for this adjudication is the complainant’s referral to the respondent Secretary General following the respondent’s failure to agree to his application for retention.

The complainant’s employment with the respondent ended on the 9th January 2017. An employee has six months from the date of an alleged act of penalisation to refer a complaint to the Workplace Relations Commission, pursuant to Schedule 2 of the Act. This is extendable for a further six months, where the employee can show reasonable cause that explains and excuses the delay in pursuing the complaint. I find that the complainant has established reasonable cause, in particular his promptness in referring this complaint after the hearing in ADJ 6381.

Having considered the evidence, I note that the complainant sought for the Secretary General to carry out a review of the respondent’s decision not to agree to his application for retention. The Secretary General carried out the internal review and did not amend the respondent’s decision. I note that the complainant made a series of protected disclosures and he was dissatisfied with the outcome of the investigation carried out on behalf of the Department. The issues arising in 2016 have been adjudicated upon and no finding of penalisation was made. The Secretary General was not mentioned in any of protected disclosures and had no prior involvement with these matters. There is nothing to show that the conclusion of her internal review was related in any way to the fact of the protected disclosures, or the issues arising therein. I, therefore, find that the complaint is not well founded.

CA-00014642-001

I find that the complaint of penalisation made pursuant to the Protected Disclosures Act is not well founded.

Protected Disclosures Act

Preceding determination by the Labour Court

Time limits