PDD192

Background

The Complainant retired from his employment with the Respondent on the 8^thof January 2017. On the 20^thJuly 2017 the Complainant made a disclosure to the Minister on the basis that he was unhappy with how a previous disclosure he had made was dealt with.

The Complainant received no response from the Minister in relation to the disclosure other than an acknowledgement that the letter had been received.

Complainant’s case

The Complainant had a long employment history with the Department and in the course of his tenure he raised some issues of concern using the processes of protected disclosure. The Complainant was unhappy with how his protected disclosure was dealt with and in particular the fact that despite repeated requests he was not given a copy of the investigation that took place arising from his original disclosure. When he eventually got the report, he had a number of concerns in relation to same. He tried to raise these complaints on a number of occasions but did not receive a satisfactory response. On the 20^thJuly 2017 the Complainant made what he believes to be a protected disclosure to the Minister in relations to his concerns about how his previous protected disclosure was handled. To-date he has not received a response to that complaint. It is his contention that the Department’s policy on protected disclosures requires them to inform him of their decision in relation to his disclosure. In relation to detriment the Complainant does not dispute that he was not in the employment of the Respondent at the time or after the disclosure however he argues that there is an ongoing financial loss arising from his retirement in January 2017 and the failure of the respondent to respond to his complaint in accordance with their own procedure.

Respondent’s case

It is the Respondent’s case that the disclosure made in July 2017 was not a protected disclosure. The alleged disclosure was not something that had come to his attention through his employment. It was in fact a grievance about what he perceived to be a failure of the Minister to address his previous protected disclosure in a manner that he found acceptable. In relation to the report the Complainant referenced he had not specifically requested same. The Complainant was given an over view of what the report contained and told he could seek a review which he declined to do. The Respondent acknowledges that its code of practise does require it to respond to a protected disclosure even if it is only to advise that no further action is being taken and that no response other than a holding response was issued in respect of the Complainant’s July 2017 disclosure.

It is the Respondent’s case that even if the disclosure was a protected disclosure in line with the Act the Complainant has not identified any detriment that has arisen from his making of the disclosure.

The applicable law

• S 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.

  (2) Subsection (1) does not apply to the dismissal of an employee to whomsection 6(2)(ba) of theUnfair Dismissals Act 1977applies.

  (3)Schedule 2shall have effect in relation to an alleged contravention of subsection (1) .

  (4) Subsection (3) does not apply in relation to the penalisation of an employee if the employee is within paragraph (d) ofsection 2(1) of theUnfair Dismissals Act 1977.

  (5) Any person who, on examination authorised under paragraph 3(1) ofSchedule 2, wilfully makes any material statement which the person knows to be false or does not believe to be true commits an offence and is liable on summary conviction to a class A fine or imprisonment for a term not exceeding 12 months or both.

  (6) ………

It is disputed in this case that a protected disclosure in line with s5 of the Act was made. However, even if the Court was to accept that the disclosure made on the 20^thJuly was a protected disclosure, a penalisation must have arisen from the making of that protected disclosure for the Complainant to obtain the protection of the Act. As this Court pointed out inO’Neill v ToniandGuy Blackrock Limited[2010] E.L.R. 21 it is necessary for a Complainant to show that the detriment of which he or she complains was imposed “for” having committed a protected Act. This suggests that where there is more than one causal factor in the chain of the 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.

In this case the detriment complained of his ongoing financial hardship arising from his retirement. Having carefully studied the submitted documents and listened to the oral arguments on the day it appears to the Court that applying the “but for” test to the detriment identified by the Complainant in his complaint that this ‘detriment’ existed prior to the lodging of his complaint on the 20^thJuly and therefore would have existed even if he had not made this protected disclosure.

For the reasons set out above the Court is satisfied that no penalisation occurred.

The Complainant’s appeal cannot succeed and is dismissed. The decision of the Adjudication officer is affirmed.

The Court so determines.

Signed on behalf of the Labour Court



Louise O'Donnell
CR______________________
1st April, 2019Deputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Ciaran Roche, Court Secretary.