Complainant

Respondent

Anonymised Parties

An Official Veterinarian

A Public Body  

Representatives

AndrewCody,Reidy Stafford Solicitors

No Appearance by or on behalf of the Respondent.

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-00021875-001

17/09/2018

The Complainant, a Veterinarian submitted a complaint of Penalisation in accordance with the Protected Disclosure Act 2014 on 17 September 2018. The Respondent is a Government Department who was invited to hearing by means of a letter dated 30 January 2019. There was no appearance by or on behalf of the respondent at hearing.

The Complainants representatives understood that the Respondent was on notice of the claim also.

On submission of the claim, the complainant submitted that he was not represented. On the day of hearing, the complainant was represented by his Solicitor who had prepared helpful written submissions. I did not have the benefit of a responding submission from the Respondent side.

The Complainants representative outlined that he had qualified as a Veterinary Surgeon in 1983. The Complainant joined the Respondent employment on 19 November 1990 following a 7-year private practice and worked until 27 October 2017. He worked a 43-hour week.

The Complainant has submitted that he was penalised for having made a Protected Disclosure in May 2018.

The Complainants Solicitor outlined that the Respondent in the case is involved in several monitoring a controlling aspects of food safety, animal and plant health and welfare.

The Complainants periods of employment were further broken down:

1. 19 November 1990 – 31 December 2005 (veterinary Inspector (VI)

2. 1 January 2006 – 31 March 2017 (retirement) (Official veterinarian) (OV)

3. 1 April 2017 -28 October 2017 and November 2018 to February 2019   as locum post retirement.

The Complainant has introduced the circumstances around a publicly run advertisement for the positions of Veterinary Inspector (V I) country wide in October 2016. The closing date was 3 November 2016.

Prior to the closing date, the successful candidate had to hold a qualification in veterinary medicine, eligible for registration with a national council and must have been onto that register prior to being offered the position. The Complainant was placed number 87 on a national panel on 2 May 2017 and maintained that he had been overtaken by a less qualified candidate in October 2017. The Complainant explained that he had some cases live before the Labour Court concurrent with the instant case.

The Complainant went on to clarify that he had made applications under Freedom of Information directly to the Recruiting Agency dated March 8, 2018 and latterly to the EU Commission dated June 2018. He confirmed that the EU Commission had not yet commenced an infringement procedure.

EU Commission Regulations lay down specific rules for the organisation of official controls on products of animal origin intended for human consumption. Chapter 4 on Professional qualifications outlines that the Respondent may only appoint Veterinarians who have passed a test meeting the requirements of paragraph 2 as Official Veterinarians. This consisted of a Post Graduate Certificate run by two Universities. Entry requirements for 2018/2019 require a degree in Veterinary   medicine plus at least a minimum of one-year post qualification experience. A further stipulation requires practical training for a probationary period of at least 200 hours before starting to work independently.

Extract .EC Regulation No 854/2004

The Competent Authority may appoint only veterinarians who have passed a test meeting the requirements of paragraph 2 as official veterinarians.

. However, when the competent authority is satisfied that a candidate has acquired all the required knowledge as part of a University Degree, or through continuing education resulting in a post graduate qualification, it may waive the requirement for a test.

Veterinary Inspectors who were appointed prior to 2006 were recognised as Official Veterinarian (OV) The Complainant completed his Post Graduate Certificate in Veterinary Public Health in 2009.

The Complainant received confirmation on 22 February 2019, from the national recruitment agency that the Post Graduate Cert was not a requirement for the advertised positions. It was impossible to verify the number of candidates who possessed this academic award. The Complainant formed the view that certain Vets had been approved as Official vets without appropriate qualifications.

On 17 May 2018, the complainant submitted a Protected Disclosure to the Respondent via an intermediary who was authorised to file this complaint. He was not a direct employee at that time, pursuant to 3(2) (A) of the Act but had been a Civil Servant within the meaning of the 1956 Civil Service Registration Act 1956.

The Protected Disclosure stated that an EU Directive 854/2004 required all VIs in Meat Factories to hold a specific qualification in accordance EU Law passed on 1 January 2006. An appointment had taken place from an employment panel which replaced him by a younger member, not in possession of the obligatory course. This breached the Regulations and constituted a wrong doing under the Legislation.

 The document was acknowledged on 29 May 2018 and referred to as “may constitute a protected disclosure” The complainant was informed that the Disclosure was to be forwarded to a named person who was to communicate the outcome of any potential actions directly to the complainant.

“My view is that information provided by you in your submission received by (the intermediary) on May 14 may constitute a Protected Disclosure. Considering this and in line with the relevant legislation and policy in place you have:

1 Right of Protection if you are unfairly dismissed

 and

2 Right of Protection if you are otherwise penalised or threatened with “penalisation”.

Nobody communicated with the complainant apart from an affirmation that the named person received the communication. He followed up the complaint by email on 5 occasions without securing a response before lodging a complaint of penalisation under the Act on 17 September 2018. He has not received a response to anything.

The Complainant inserted a copy of the letter sent to the Head of Personnel on 31 August,2018 which referred to another Protected Disclosure dated 21 June 2017 submitted to a Government minister which had also not received attention from the Respondent. In the August letter, the Complainant stated that his concerns had not been addressed and he had got “no support for speaking up regarding my genuine concerns of the Respondent wrongdoing “He stated that he had been denied an opportunity to comment on the Respondents findings on the Protected Disclosure as he had not received an outcome.

The Complainants Representative in relying on SI 464 /2015 Code of Practice on Protected Disclosure, drew the hearings attention to the first step mentioned in Section 46, that of “whether or not the disclosure should be treated as a protected disclosure “It was the complainant’s case that he had already crossed this hurdle on reception of the complaint. His expectations were raised that his complaint was in the right place and would be addressed in accordance with the Respondent Policy.

The Complainants representative went on to consider the Respondent Policy on Protected Disclosure, which did not delineate a specific provision for investigation under the Act but rather where investigations/ and or actions are warranted they would be conducted under the appropriate existing policy or procedure where such exists. Everything else was to be conducted under the heading of management investigation.

Section 11 of the Policy requires the Head of Human Resources to carry out an investigation in the case of a complaint of penalisation.

The solicitor for the Complainant submitted that he had been completely ignored and that his claim of penalisation is informed by:

(a)    Unfair treatment

(b)    Disadvantage

(c)     Loss of opportunity

The Complainant was not permitted a proper investigation for his genuinely held believes that the recruitment process was flawed. He was a participant in the competition and held the belief that he was wrongly placed on the panel and had been by passed by unqualified candidates. He has lost his availability for re-employment since October 2017. He is currently hopeful of appointment from the 2017 panel.

He had been denied an investigation of his Protected Disclosure and his complaint of penalisation.

The Complainant relied on the Labour Court case of Toni and Guy, Blackrock Ltd V O Neill HSD 095, in submitting that it was apt to infer that the Complainants Protected Disclosure was an operative consideration leading to his penalisation. It now falls to the respondent to satisfy the Court on credible evidence that the protected disclosure relied upon did not influence the Respondents failure to engage and carry out the two necessary investigations.

The Complainant submitted that he sought redress in the form of a Direction from the Adjudicator that a full and proper investigation of the protected disclosure and complaint of penalisation should follow in addition to compensation from the effect of the penalisation.

The complainant confirmed that he had formed the view that the Protected Disclosure route was a more reasonable route than that of the grievance procedure to address his contention of relevant wrongdoing. He confirmed that he had not been represented during the internal procedures prior to coming to the WRC.

The Respondent is a Government Body who was notified of the claim on 19 September 2018. On 27 September, further correspondence received from the complainant was also furnished to the Respondent.

On 30 January 2019, the Respondent was invited to attend a hearing of the complaint. There was no attendance by or on behalf of the Respondent at hearing.

Nine days post hearing, two supplementary documents submitted by the complainant on notification of constitution of the employment panel on 2 May 2017 were forwarded to the Respondent.

The Respondent has not filed a defence in the case.

I have considered the oral and written submissions presented in this case. I am satisfied that the Respondent was on notice of the presence of the complaint and of invitation to hearing. In addition, the Respondent was appraised of an abundance of documentation in the case. As a Public Body, I thought it unusual that there was no attendance and I have left time pass since the hearing date. It is for me now to finalise my decision in the case.

On 17 September 2018, the WRC received a complaint claiming penalisation had followed the complainant in response to a Protected Disclosure made by him and processed by an Intermediary on 17 May 2018.

It is clear from the documents submitted that the complainant made an earlier Protected Disclosure in June 2017, this time to a Government Minister. This  documentation points to a delay in processing this Disclosure in the face or two other active appeals run by the complainant. On October 2017, this seems to have been amended when the Human Resource Contact confirmed that she had issued a report to the complainant prior to leaving her department. The Complainant does not appear to have received this response. I had the benefit of sight of an extract of the June 2017 disclosure in the Complainants submissions. There are some over laps in this case.

The Complainant has based this case on the May 2018 Protected Disclosure. On reading this document I had immediate concerns at its brevity, the reference to EU Directive rather than EU Regulations. It was unsigned and undated. The Complainant submitted that the Respondent relies on an Intermediary to submit these complaints. I found this document to be poorly drafted and not consistent with the questions asked on dates, names of individuals and overly edited to the point where it was hard to decipher the message intended by the complainant. Given the Complainants clear recall and undisputed knowledge of the topics he raised as supported by documents in all cases, I have identified an early flaw in the process, that is the capturing of the message and its preparation for analysis within  the Respondent service.

 Making a Protected Disclosure is not an every day event and I found the approach reported as adopted to be overly casual in this case. I had concerns that the presence of an internal confidential  Conduit may have placed the Protected Disclosure submitted into the second step regime but found it to be  first step approach.

 I was struck by the findings in Brothers of Charity Services, Merseyside V Cole EAT /UK /0661/00 of interest here, where an Employment Assistance Programme acted as conduit for a Protected Disclosure. The Respondent in the case raised issues regarding this. The EAT held that it was an acceptable practice based on the business arrangement between the parties. I note that that the conduit is the first port of call listed in the nomination of where a potential complainant should submit a potential complaint to in the Respondent Policy.

I accept that the complainant is a worker in accordance with section 3 of the Act.

Penalisation is defined in Section 3 of the Act.

 “penalisation” means any act or omission that affects a worker to the worker’s detriment, and 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;

Before I make a decision on penalisation in this case, I must be satisfied that a Protected Disclosure is in being.

Section 5(8) of the Act provides that :

In proceedings involving an issue as to whether a disclosure is a protected disclosure it shall be presumed, until the contrary is proved, that it is.

Section 5(1) of the Act on Protected Disclosure

For the purposes of this Act “protected disclosure” means, subject to subsection (6) and SS 17 -18, a disclosure of relevant information made by a worker in the manner specified in SS 6-10.

The worker must reasonably believe that the information disclosed by him tends to show one or more relevant wrongdoings. The worker is permitted to be wrong as outlined in the Respondent Policy, however, the English EAT stated in Darnton V University of Surrey [2003] ICR 615 para 33, reasonable belief must be based on facts as understood by the worker, not as actually found to be the case. (reference; Whistleblowing by Dr Lauren Kierans in Maeve Regan, Employment Law)

On reflecting on the complainant presentation, I was struck by the visible legacy unfolding from the first unresolved Protected Disclosure submission in June 2017. There is a clear dispute on whether the Complainant ever received a report from this. I note that there is provision for appeal of such a report provided for in the Respondent Policy. No details of such an appeal were shared with me and I have to conclude that this matter is still open for the parties.

I have confined my findings to that of the May 2018 document. The factual detail here lists reference to a competition for Vet Inspectors, retirement aged 70, where the complainant had been unsuccessful. The subsequent appointments took place in breach of named EU Regulations and therefore constituted a wrongdoing under the Act. The Complainant had been replaced by a younger panel member. ( source primary document )

In my opinion , there are two components to this complaint . The Complainant is aggrieved at being overlooked for a position and the contention of breach of EU Regulations in relation to the educational requirements associated with the posts in the meat factories .

I am mindful of Section 10(1) of the Act which prevents a disclosure being made for personal gain. It is clear to me that the  complainant “had skin in the game “at the time of submitting his complaint in May 2018.

 He carried a high level of residual dissatisfaction following his being replaced at work a not being heard by his employer. However, it would be over simplistic for me to leave it at that.

 During the hearing, the complainant and his representative expended considerable energy explaining the detail they wished  to place on the record concerning the complainants concerns regarding the variation from the obligations a certain EU Regulation placed on the Respondent. which the complainant had contended were being actively overlooked . I note that these concerns were plainly set out also in his 31 August 2018 letter to a Senior Human Resource, where he stated:

I have a reasonable belief that relevant wrongdoings have occurred and are occurring

Section 5(7) of the Act provides that motivation is irrelevant in the making of a Protected Disclosure.

I have given a lot of thought to the facts presented in this case. I have read the documents presented inclusive of the Respondent Policy on Protected Disclosure which is a fine document. Of course, I would like to have heard from the Respondent in this matter. I had very little to go on apart from the respondents recipient of the May 17 document appears to have determined that the document may be a Protected Disclosure. What followed has caused me some concern given the assurances of throughput of all protected disclosures  contained in the official policy at the Respondent service.

At any rate, I must make findings on what I have secured through oral and written submissions. I believe that the complainant should have considered the same level of representation he commissioned for the hearing much earlier in this process. He is clearly carrying a high level of worry regarding the facts he believes to be true.

Notwithstanding my already declared concerns on the poor drafting of the document, I have found that the document lodged by the complainant to the agreed recipient on May 17, 2018, acknowledged by the Respondent on May 29 ,2018 can be regarded as a Protected Disclosure purely on the contention of the breach of EU Regulations and the subsequent impact on the appointments made from the process. I find that he  has satisfied the test in Section 5 (3)(a) (b) of the Act on that basis.

I will now consider the claim for penalisation.

Section 12 of the Act provides:

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.

The seminal case on penalisation in this country to date is found in Aidan and Henrietta Mc Grath Partnership V Anna Monaghan PDD 2/2016,

The test is identified as:

1 Establish that a Protected Disclosure is in existence

2 Examination of the facts to establish whether penalisation has occurred?

Like the complainant the Complainant drew on the jurisprudence in O Neill  

“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. ……. The commission of the protected act must be the operative cause in the sense that “but for “the complainant having committed the protected act he would not have suffered the detriment.”

I have considered the complainants submission on how he believes that he has been silenced in respect of his “advocacy “I note that he has engaged in a lot of contact with external agents up to the level of the EU Commission on his concerns and he has obtained a high level of information worthy of sharing with the Respondent.

I have found that all communication appears to have been addressed by email rather than registered mail and of course, there may be a slight and unlikely possibility that it may not have been received. I am satisfied that the parties both had an awareness of this case from the complainant’s representative at hearing.

 However, surely the initial recipient of the report carries a responsibility on throughput? Surely the initial contact for the Respondent had an interest in overseeing a fair investigation of the complainants stated concerns raised via a very special and supposed safeguarded  forum, that of a Protected Disclosure?

 I am at a loss to see such a shortfall in engagement between the parties contrary to the opportunities provided in the Respondent Policy. Crucially an appeals mechanism cannot action outside a report and there is no report available to me at this time.

The Protected Disclosure Act 2014 was enacted to make provision for and in connection with the protection of persons from the taking of action against them in respect of making of certain disclosures in the public interest and for connected purposes. Kieran’s summarises that the Act introduced a single overarching framework for the protection of workers in the public, private and non-profit sectors.

The Complainant has not been entertained by the Respondent in terms of this complaint at any level. The Complainant has not accepted this approach and has made a demonstrable attempt to be heard through 5 follow up contacts and a detailed letter dated 31 August 2019. On the day of hearing, he had no idea what plan existed to manage this Protected Disclosure.

A Hallmark of Fair Procedures is the right to be heard. The Complainant deserves to be heard and he is adamant that he has not been provided with this opportunity to date. The Public Body in this case is a Public  Body and has responsibilities in this regard.

I accept the complainant’s submissions that he has been treated unfairly and contrary to the terms of the Respondents own policy. I believe that he has been disrespected in trying to articulate his concerns about what he believes to be a relevant wrong doing. He has to date been denied an adequate forum for his concerns and he has not had the benefit of considering any response the Respondent may wish to make in relation to the protected disclosure.

I accept that the Respondent returned the complainant to work in November 2018 as a locum and has not prevented this occurrence.

I have found that the complainant has been penalised in contravention of Section 12(1) of the Act by his continuing exclusion from a pathway to examine progress and feedback on his protected disclosure, albeit that there is a possibility his concerns may be unfounded. For today, he continues to carry these concerns and the Respondent has a moral and statutory obligation to act in this case.

I find the claim is well founded. The complainant has been unfairly treated as direct consequence of raising a Protected Disclosure .

Dated:   16/07/2019

Workplace Relations Commission Adjudication Officer:  Patsy Doyle

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