Complainant

Respondent

Anonymised Parties

A Public Servant

A State Agency

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-00010412-001

24/Mar/2017

The complainant made a Protected Disclosure on September 28th 2015. He says that he was penalised for doing so.

The complainant listed a large number of detailed examples of penalisation, some eleven main, and a number of other complaints in all.

(Adjudicator’s Note; To avoid repetition these are listed with, and they will be clear from the respondent’s response to them below, including the complainant’s submissions. The detail of the complaint provided in the submission, at the hearing and in a further submission after the hearing has been fully considered, but has not been included as it could identify the parties.).

These ranged from exclusion from meetings, the removal of tasks he previously performed and his role being undermined, being treated differently to co-workers, being isolated and excluded from various tasks, decision making and information he needed.

The complainant had been appointed acting Assistant Manager with the respondent in October 2012.

He made two protected disclosures in September 2015. Some of the content of the disclosure was deemed worthy of further investigation and one became the subject of legal proceedings. It is not disputed that a protected disclosure took place

The internal investigation began in December 2015 and it reported the following August (2016).

The conduct complained of as penalisation began in early 2016 and continued throughout that year and into 2017.

The respondent says by way of general background that it was going through a very significant re-organisation and change process in the period under consideration. Many of its previous functions were being assigned elsewhere to other public sector agencies and this had consequential effects within the organisation, particularly for the area of responsibility in which the complainant worked.

Indeed, the focus of the division in which the complainant worked has been radically altered.

The respondent identifies four broad areas into which the complaints fall;

a) Exclusion from committees, events, training and running of the department in which he works

b) The removal of tasks and denying him meaningful work.

c) Different treatment, and

d) The withholding of information.

It responds as follows to the various specific allegations.

1)      Removal from an Advisory Committee.

The committee in question ceased to exist in mid-2016.

The committee which took over this role was an external committee run by another agency and had a broader remit than the one on which the complainant served. He was not nominated to the new committee but the nominating manager did not become aware of the complainant’s protected disclosure until May 2016 and could not have been motivated by this in making the appointment which preceded this.

While the complainant says that management of the organisation would have been aware in general terms that a disclosure had been made witness A said that nether he or others involved would have known the identity of the person who had made it.

He also says that he did nominate the complainant to another committee.

2)      Complainant not invited to a Memorial Day event.

The respondent says that invitations were not within its gift and had been sent by the agency which had taken over the committee referred to at 1) above.

3)      Exclusion from a Training Event

It seems that the complainant had initially been approached by someone within a local training centre and asked to attend. But this was subsequently reviewed from within that centre on the basis that they had the resources themselves to discharge the role they foresaw the complainant undertaking.

So, there was no formal request for the complainant to attend, merely an inquiry which was later re-considered and overruled as it had the resources itself to do the work for which the complainant was being considered.

The respondent says that had there been a specific request for the complainant‘s services he would have attended.

Evidence of the communications via email was opened to the hearing.

They say that they offered the complainant’s services and indeed he has attended there on three occasions, June 12th and 15th 2016 and September 2017.

4)      Removal from a Steering Group

The respondent says that the complainant has not ‘been removed’ from the group. It has an ‘ad hoc’ existence.

The complainant says that the name of the group may have changed but that it still exists. The respondent refers to a report by external management consultants in 2012 which concluded that the work of this group should be transferred elsewhere. Following an internal review in November 2015 the group to which the complainant refers has been ‘put on hold’.

5)      Exclusion from a Quality Assurance Group

This group was formed in March 2017. The complainant rejects the respondent’s assertion that he could not have undertaken this work because of his then workload and says he was the only person at his grade level who was excluded.

Witness B gave evidence that the role of this committee was to collate information. All members of his department, including the complainant were invited to the briefing meeting on the group.

It had a general remit for quality across the organisation. The person selected to lead the work had capacity to undertake it at that time. The complainant outlined his own qualifications in the area.

Contrary to what the complainant asserts, the respondent says he was not the only member of his grade not on the committee

Witness B said that, while he knew someone had made a protected disclosure he did not find out the identity of the person until November 2017.

6)      Exclusion from delivery of training in December 2016 and January 2017.

The events referred to her by the complainant were merely briefing sessions on draft proposals related to a particular construction skillset. Witness B again gave evidence that the person conducting the event for clients was the subject matter expert and had concluded a review of the training content.

To have involved the complainant would have been an unnecessary duplication of resources.

7)      Complainant not advised of inclusion of new client organisation

The respondent says that there is no formal process for notification when a new client has been approved; these are listed on the respondent’s database and happens relatively infrequently. Only seven were approved in 2016, two in 2017.

8)      Exclusion of complainant from Technical Group

This, and another committee from which the complainant says he was excluded were ‘ad hoc’ committees which had a limited (three months) term of office. The group involved in this complaint met three times and has not met since. Its work was concluded.

9)      Exclusion of complainant from meetings generally

The respondent says that two of the meetings referred to are ad hoc groups that no longer meet, another referred to has had only one meeting and another has not met at all.

There has been no exclusion from meetings

10)   Reduced communications to complainant

The respondent says that there has been no change in the complainant’s flow of correspondence, or in its nature tone or flow.

The respondent repeats that the complainant has confused the very significant pace of change in the organisation and its outworking with a response to his protected disclosure.

The divergence between the parties is well set out above.

In general, as can be seen, it is not so much a conflict as to the facts, but in most cases a question of what those facts signify, and what caused them. Specifically do the incidents of changes in the complainant’s role raised by the complainant reflect penalisation for his 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.

It is easy to see how the complainant saw the various incidents as such. It is not in dispute that there were significant changes taking place in the organisation and that these were impacting on him, in some cases, as he saw it, adversely.

And they were.

The respondent has offered a detailed explanation in respect of all of these perceived acts of penalisation. I find that in respect of all the incidents claimed by the complainant to represent penalisation that those explanations were credible.

I could not detect either individually or as a trend taken together evidence to support the complainant’s feeling of having been penalised.

Here are the reasons for that finding.

It is not sufficient that the protected disclosure and the alleged reaction to it simply be proximate in time. The fact that two actions take place close to each other does not mean that one caused the other.

The Act requires, at Section 12, that the act of penalisation be ‘for having made a protected disclosure’.

The respondent relied on decisions in Monaghan v McGrath Partnership (PDD162) and A Senior Official v A Local Authority (ADJ-00001721) which followed the decision in O’Neill v Toni & Guy, Blackrock (2010) E.L.R. 21; a case under the Health, Safety and Welfare at Work Act and where it was held;

Thus, 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 the 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’

Put another way, would the action complained of have happened anyway, even if the protected disclosure had not been made.

The most obvious basis for a complainant to successfully make out a case is that there can be no other explanation for the action, or at least any other reason must survive the ‘but for’ test outlined by the Court.

In that the complainant failed. There were eleven key complaints in the complainant’s submission, and in the course of the hearing various subordinate, additional complaints. There were also further submissions after the hearing, which largely repeated the arguments on both sides.

While it is easy to understand the complainant’s perception of what was happening, the respondent and the witnesses on its behalf offered credible and persuasive responses on all the eleven complaints.

I cannot conclude that the actions complained of represented penalisation for having made a protected disclosure. Rather, while they followed that act they were either explained by the general changes in the organisation or were partially understood, or misunderstood by the complainant and there were other explanations for what happened.

Most the complaints were in this latter category and I find that those explanations meet the legal test set put above. It is also unfortunate that these matters could not have been explained and resolved at the level of the workplace.

For these reasons the complaint is not upheld.

For the reasons set out above I do not uphold CA-00010412-001 and it is dismissed.

Protected disclosure, penalisation.