PDD186

Background

The Complainant commenced employment with FAS in January 2003. In 2012 as part of Government policy it was decided that FAS was to be dissolved. The Complainant was one of a small number of staff that transferred across to the newly established SOLAS in 2013. SOLAS has responsibility for building the Further Education and Training sector within Ireland and manages a number of schemes including the Apprenticeship system, Safe Pass and the Construction Skills Certification Scheme. It is not disputed between the parties that in September 2015 the Complainant made a protected disclosure. The Complainant’s complaint was received by the WRC on the 24^thMarch 2017. In accordance with the Act the cognisable period within which a penalisation could have occurred is 25^thSeptember 2016 to 24^thMarch 2017.

Complainant’s case

It is the Complainant’s case that following the making by him of a protected disclosure, duties that he had previously carried out were removed from him. In particular he identified the following areas where he believes he was either excluded or treated differently to how he had been treated prior to making the protected disclosure.

• 
  i) March 2017 a quality assurance review group was established. The Complainant was excluded from same. It was his position that other members of his unit were approached to join the review group, but he was not despite this being his area of expertise.

  ii) HSA Training October 2016. Initially the Complainant was approached to see if he was available for this training. He confirmed he was. He was later advised that his service was no longer required for the training.

  iii) The issue related to some documents the Complainant had. He was asked by his line manager to compile the information and give it to the clerical officer who worked for the Director. It is his contention that in the past he would give the information directly to the Director who would have approached him directly for it.

  iv) He was not included on an emailing list from the Department of Education in relation to a specific training session. He acknowledges that he was included on other emails from the Department around the same period of time. It is his contention that SOLAS must have instructed the Department of Education to exclude him from the training session.

Respondent’s case

The Respondent does not dispute that there was ongoing change during the period in question. It is their contention that all staff were affected and that it did not arise from the protected disclosure but rather from the results of reviews that had been commissioned leading up to and following on from the transfer of work and staff from FAS to SOLAS. In the period 2012 to 2017 four reviews were carried out in the areas of Safe Pass, CSCS and QSCS some of these arose from legal challenges and other external factors. These reviews did impact on the Complainant’s work area. In relation to the 2015 and 2017 reviews the Complainant along with other staff were involved in the consultative process for both reviews.

In relation to the specific issues identified by the Complainant;

• 
  i) He was not asked to sit on the Quality assurance committee as it was felt at the time he had a heavy workload and another member of staff who had just finished a project had more capacity.

  ii) While SOLAS had initially been approached to provide this training the Laois Offaly Education and Training Board decided that they had the resources to run the training and did not require input from SOLAS.

  iii) This was a legitimate request for information sent down through the line. The Director in question from the time he moved into that area operated in this manner. This request was no different to previous requests from the same Director.

  iv) The Respondents deny that they at any time requested that the Complainant’s name be removed by the Department from their emailing list. The fact that in and around the same period the Complainant received other similar correspondence from the Department of Education supports the Respondent’s position on this issue.

  The Respondent’s position is that there was significant change ongoing and it was arising from this change agenda that changes to the Complainant’s role occurred and that the Respondent did not in any way penalise the Complainant for making a protected disclosure.

• 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 not disputed in this case that a protected disclosure in line with s5 of the Act was made. It therefore falls to the Court to consider whether or not the Complainant was penalised for having made such a protected disclosure. 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 is exclusion from committees and changes to roles that the Complainant had previously carried out. The Respondent in its submission are clear that the changes arose from ongoing changes within the organisation not linked to his protected disclosure. Both parties provided the Court with documentation and email exchanges in relation to the changes that occurred. 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 issues identified by the Complainant in his complaint that these issues/changes would have arisen even if he had not made a protected disclosure. In those circumstances the Court must find that the changes to the Complainant’s role were wholly unrelated to the protected disclosure and therefore no detriment in line with s 12 of the Act arises.

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.