PDD197

FULL RECOMMENDATION

PD/19/10

DETERMINATIONNO.PDD197

ADJ-00016854 CA-00021875

SECTION 12 (2), PROTECTED DISCLOSURES ACT, 2014

PARTIES :

DEPARTMENT OF AGRICULTURE, FOOD AND THE MARINE
(REPRESENTED BY CHIEF STATE SOLICITOR'S OFFICE)

- AND -

ANDREW CONWAY
(REPRESENTED BY REIDY STAFFORD, SOLICITORS)

DIVISION :

Chairman: Mr Haugh
Employer Member: Mr Murphy
Worker Member: Ms Treacy

SUBJECT:
1. Appeal of a Decision of an Adjudication Officer No. ADJ-00016854 by the Department of Agriculture, Food and the Marine.

BACKGROUND:

2. This is an appeal on behalf of the Department of Agriculture, Food and the Marine (‘the Respondent’) from a decision of an Adjudication Officer
(ADJ-00016854, dated 16 July 2019) under the Protected Disclosures Act 2014 (‘the
Act’). The Adjudication Officer decided that Mr Andrew Conway’s
(‘the Complainant’) complaint of penalisation within the meaning of the Act was
well-founded. The Respondent’s Notice of Appeal was received by the Court on 26
August 2019. The Court heard the appeal in Dublin on 6 December 2019.

DETERMINATION:

The Factual Matrix

The Complainant made a protected disclosure within the meaning of section 5 of the Act on 14 May 2018. This was received on that date by an official recipient of such disclosures on behalf of the Respondent, Resolve Ireland. The disclosure appears to have been relayed directly to an official in the Respondent Department on 17 May 2018. The substance of the protected disclosure related to a recruitment campaign run by the Public Appointments Service on behalf of the Respondent in 2016. The campaign was for the purposes of establishing a panel of veterinary inspectors. The Complainant applied for inclusion on the panel in question and was placed 87^thfollowing a competitive interview that took place on 14 March 2017.

The Complainant wrote to the Head of Personnel in the Respondent Department on 31 August 2018 as follows:

“Dear Mr [X] (Head of Personnel)
I want to make a complaint of Penalisation against me by the Department of Agriculture, Food and Marine (sic) by not dealing with my Protected Disclosure submission to Resolve on the 17 May 2018, which was deemed a Protected Disclosure by Mr [Y] on the 29 May 2018 and which was sent to you for consideration on the same day. I have not received any communication as to the outcome of your considerations or indeed an acknowledgment of the procedures to be employed over 3 months later. DAFM are in direct contravention of their own Protected Disclosures Policy and Procedure document …”.

The Complainant referred his complaint of penalisation under the Act to the Workplace Relations Commission on 17 September 2018 i.e. approximately four months after he had made his protected disclosure.

The Complainant’s direct evidence to the Court was that he submitted his claim of penalisation under the Act to the Workplace Relations Commission because he had formed the view that his protected disclosure was being ignored by the Respondent and had not been investigated by it.

Discussion and Decision

It appears to the Court that the Complainant is misguided in his understanding of the protections afforded by the Act to a worker who makes a protected disclosure. The Long Title to the Act sets out the Act’s objective succinctly and clearly as follows:

“An Act to make provision for and in connection with the protection of persons from the taking of action against them in respect of the making of certain disclosures in the public interest and for connected purposes.”

The Complainant was afforded every opportunity by the Court to outline in evidence what action he perceived had been taken against him, to his detriment, by the Respondent arising from the protected disclosure initiated by him on 14 May 2018. The Complainant was unable to point to any such action or detriment between the date of the making of the protected disclosure and the date on which he referred his complaint of penalisation to the Workplace Relations Commission other than to outline his perception that his protected disclosure was neither being taken seriously by the Respondent nor being investigated by it. It was submitted by the Complainant’s Solicitor that the definition of penalisation in the Act refers to “any act or omission that affects a worker to the worker’s detriment”.

The Court is not in a position to assess the Complainant’s allegations regarding the degree of seriousness or otherwise the Respondent attached to his protected disclosure or the adequacy of the timeframe within which the Respondent investigated them. Quite simply, these are not matters that fall within the Court’s jurisdiction as provided for in the Act. The combined effect of section 12 and Schedule 2 of the Act, in so far as they relate to the Court’s jurisdiction, is to empower the Court, on hearing an appeal from a decision of an Adjudication Officer under the Act, to determine whether or not there has been a breach of section 12(1) of the Act in the case of the particular complainant before it.

Section 12(1) of the Act provides:

“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.”

“Penalisation” is defined in section 3 of the Act as:

“penalisation” means any act or omission that affects a worker to the worker’s detriment, and in particular includes—
- (a) suspension, lay-off or dismissal,
  (b) demotion or loss of opportunity for promotion,
  (c) transfer of duties, change of location of place of work, reduction in wages or change in working hours,
  (d) the imposition or administering of any discipline, reprimand or other penalty (including a financial penalty),
  (e) unfair treatment,
  (f) coercion, intimidation or harassment,
  (g) discrimination, disadvantage or unfair treatment,
  (h) injury, damage or loss, and
  (i) threat of reprisal;”

In the Court’s view, and having regard to the wording of the definition of penalisation for the purposes of the Act, the Complainant has failed to establish that any act or omission on the part of the Respondent, that affected him to his detriment, occurred at all and/or ensued as a consequence of the protected disclosure the Complainant made on 14 May 2018.

The appeal, therefore, succeeds and the decision of the Adjudication Officer, in its entirety, is set aside.

The Court so determines.

Signed on behalf of the Labour Court

Alan Haugh
RK______________________
13/12/2019Deputy Chairman

NOTE

Enquiries concerning this Determination should be addressed to Richard Kennedy, Court Secretary.