26 April 2019
Complaint Ref:
A Complainant v A Public Body
Specific Complaint Reference | Complaint Area | Act |
Penalisation | Complaint seeking adjudication by the Workplace Relations Commission under Schedule 2 of the Protected Disclosures Act, 2014 |
Following the referral of the complaint to me by the Director General, I have inquired into the complaint and would advise you as follows: -
I note that on 10 March 2019, a claim of alleged penalisation under Section 12 and the Second Schedule of the Protected Disclosures Act 2014 (for adjudication under Section 41 of the Workplace Relations Act 2015) was referred to the Workplace Relations Commission. It is clear from the face of the complaint form that your employment with the respondent ceased on 4 January 2017.
Section 12 of the Protected Disclosures Act 2014 requires for there to be a subsisting employment relationship in place between the complainant and respondent at the time of any alleged act of penalisation. This is clear from the wording of Section 12(1) which provides as follows: -
“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”.
In circumstances where there was no employment relationship between you and the respondent at the time of the alleged penalisation - which allegedly took place in August 2018 some 19 months post the cessation of your employment - your claim is misconceived, has no prospect of success and is bound to fail. This is on the basis of taking your claim at its height.
In addition, a complaint under Section 41 of the Workplace Relations Commission must be referred to the WRC within a period of 6 months from the date of termination of employment - extendable to 12 months for reasonable cause.
Your claim was lodged outside of this period over which the WRC has jurisdiction, in excess of two years post the cessation of your employment. Therefore, no jurisdiction exists for your claim as lodged.
On the basis of the foregoing, your complaint is hereby dismissed as being frivolous and vexatious in accordance with Section 42 of the Workplace Relations Act 2015.
If you are dissatisfied with this dismissal, you may appeal this dismissal to the Labour Court within 42 days of the dismissal.
Yours sincerely
____________________________
Adjudication Officer