Complainant

Respondent

Anonymised Parties

A civil servant

A Government Department

Representatives

None

Sarah-Jane Hillery BL instructed by the Chief State Solicitor's Office

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00026303-001

14/02/2019

Complaint seeking adjudication by the Workplace Relations Commission under Schedule 2 of the Protected Disclosures Act, 2014

CA-00026303-002

14/02/2019

The complainant is a civil servant, who asserts that he has been penalised by his employer, a Government Department. The respondent denies the claims.

The complainant outlined that his list of detriments was open-ended. They include receiving documents via his data access request on the day before his Labour Court appeal hearing. He said that the respondent held back releasing the documents until this time. He requested the information in mid-November and the respondent took a further two months to provide the information. Referring to the ‘but for’ test, he outlined that he was not required to prove retaliation.

The complainant said that he has been on sick leave since January 2018. This related to the stress of working in the civil service while being a whistleblower. He said that the respondent had showed “capricious disregard” for the law.

Referring to the documents disclosed by the respondent, he said that there were threats to cut off his mobile phone. He agreed that he had attended work on a Saturday morning, and this was to prepare for the Labour Court hearing. He had required access to work emails. He compared this to Sgt McCabe’s access to PULSE. The complainant said that he had been looking to access information to which he was entitled. He asked why would the respondent disable access if they were not covering something up. The complainant could not access the workplace or email from the 19th or 20th September and there was the threat to cancel his work mobile.

The complainant said he had sought to return to work in November 2018 and asked the respondent to comply with international best practice regarding whistleblowers. The response was that this would not be facilitated. The complainant was instructed not to return to work and was instead referred to occupational health.

The complainant said that his access was restored in February 2019 and he had incurred detriment from November to February. He has not returned to work and this is open ended detriment.

The complainant expressed his unhappiness with the email of 9th October and the reference to “If [the complainant] is fit to be in work then he should be attending work”. He said that this statement did not reflect the law and his illness certificate related to work. He said that he faced the threat of dismissal if he took up employment elsewhere.

In respect of his return to work, the complainant said that he wished for risk assessments to be carried out as part of this process. He sought information and feedback on his disclosures, but he had not been able to meet anyone about this. He referred to the Labour Court decision in PD/18/1 where the employer referred disclosures for investigation by an outside person.

The complainant said that there were multiple failures in the respondent protected disclosure policy. There was no data of reports made about the Chief Executive and no mention of the audit committee. The procedure was not visible in the respondent and provided that managers investigated other managers. He said that the respondent policy was deficient when compared to other Departments and asked for a finding that the policy is deficient.

The complainant said that disciplinary action was threatened in November 2018. This was not part of the earlier adjudication. He said that it had been awkward to cross-examine witnesses at the last hearing and then to attend work.

The complainant said that the June 2018 letter was an act of penalisation as the respondent could have continued to pay full sick pay. The respondent and the HR Manager in particular should have exercised discretion and not doing so amounted to detriment. The Chief Medical Officer should have had regard to his whistleblowing in assessing his case. The complainant said that the respondent was trying to starve him out.

The complainant said that he had been on reduced pay between mid-March and mid-November 2018 and restored to full pay on the 21st November 2018. He incurred a shortfall of €22,000 and could not pay his mortgage.

The complainant said that he met the Chief Medical Officer in February 2019 who said that his issues were IR issues. The complainant was deemed fit for work, but he has not returned to work because of what happened at the Labour Court hearing. He said that he has received full pay since then.

The complainant referred to the guidance from the Australian state of Victoria regarding the need for the employer to ‘be proactive’ and ‘actively monitor’ the situation of a whistleblower in the workplace. The complainant concluded that it would not be safe for him to return to the workplace.

The complainant referred to the email of the 25th January in relation to the Chief Medical Officer. The letter threatens disciplinary action. The complainant said that he submitted a new data access request after the hearing before the Labour Court. The documentation arrived just before this adjudication.

The complainant outlined that, because of the whistleblowing, the head of audit and the CEO must sign off on any disciplinary action against a whistleblower. The complainant said that the concessions made by the respondent at the Labour Court represented a detriment as he had been telling them for two years about these issues. The concession relates the department no longer challenging that a protected disclosure was made.

In legal submissions, the complainant referred to Meadows v Minister for Justice Equality and Law Reform [2010] IESC 3 and the need for “anxious scrutiny” or a “hard look” in a case such as this. He referred to ADJ 1721 where a protected disclosure policy was ordered to be amended. Referring to PD/18/1, the complainant said that there was a duty of care to continue an investigation into a protected disclosure while the employee was on sick leave.

In respect of the Payment of Wages claim, the complainant said that this is in the amount of €22,000. He submitted that the whole amount is within time.

In reply to the respondent, the complainant said that the decision in respect of his critical illness application was one for the HR Manager following the CMO’s report. The complainant decided that an appeal would be pointless. He said that it was not regular to terminate people’s access to workplace. He needed access to work email as an accounting regulatory body sent him information at this address. He was threatened with disciplinary action and his livelihood was threatened.

The complainant said that the protected disclosures relate to issues he had identified as an accountant when looking at the respondent’s capital assets and estimates.

In closing comments, the complainant said that he would like the respondent’s letter of 2012 withdrawn as this stated that his disclosures were not in the public interest. He said that the Workplace Relations Commission should be concerned that the respondent had breached data protection and had initially refused and then delayed access. He said that he was a dissenter and a critical voice, but that dissent was not disloyalty and should not result in detriment.

In respect of the Payment of Wages claim, the respondent outlined that it dealt with the complainant’s absence according to the relevant Circular. The complainant’s circumstances were considered as part of the sick pay scheme and the Chief Medical Officer made the medical decision that critical illness did not apply in these circumstances. The complainant had not appealed this decision. The respondent submitted that there was no requirement to positively discriminate in favour of a whistleblower.

In respect of the complainant gaining access to the workplace over the weekend, the respondent outlined that the complainant was on sick leave at this time. There was a health and safety issue with the complainant gaining unannounced access to the workplace over a weekend. The respondent only became aware of this in September.

In respect of the mobile phone, the respondent outlined that this was a phone it provided to the complainant. A query was raised internally whether the complainant should keep the phone while on sick leave; HR replied that the complainant should continue to be able to use the phone. The respondent set out that the only way the complainant became aware of this internal query was through his data access request months later.

The respondent submitted that the November 2017 letter was part of the first adjudication as this was part of the whole disciplinary process. It submitted that this is now out of time.

The respondent stated that the complainant receives pay slips and has access to the portal. It accepted that the complainant made protected disclosures and stated that it has dealt with them. It stated that it was currently updating the protected disclosures policy. It submitted that there was no penalisation of the complainant for making protected disclosures.

In respect of the complainant’s return to work, the respondent outlined that it sent him the relevant return to work policy. The respondent restored the complainant to full pay and referred him to the Chief Medical Officer. It was appropriate to seek the complainant’s return and what he wanted was his own return to work procedure.

CA-00026303-001

This is a complaint pursuant to the Payment of Wages Act. Section 5 prohibits a deduction unless, inter alia, “the deduction (or payment) is required or authorised to be made by virtue of a term of the employee's contract of employment included in the contract before, and in force at the time of, the deduction or payment”. The deduction in question arises from the application of the Circular during the complainant’s extended sickness absence in 2018. The respondent referred to the relevant Circulars, for example Circular 05/2018 as well as previously Circular 12/2015 and Circular 6/2014. The complainant asserted that he ought to have been awarded Critical Illness Pay per the Circular.

The complainant’s application for Critical Illness Pay was dealt with by the Civil Service Occupational Health Department. Its letter of the 28th March 2018 concludes that the complainant does not meet the medical criteria for Critical Illness Pay but had no objection should the respondent wish to award CIP to the complainant. The letter refers to the medical appeal, an avenue the complainant did not avail of.

Having considered the evidence, I find that the deductions made to the complainant’s pay were in line with the relevant Circulars and authorised per the civil service contract of employment. The deductions are, therefore, not prohibited by section 5 of the Payment of Wages Act. It follows that the claim of a contravention of the Payment of Wages Act is not well-founded.

It is also clear that the complainant’s application for Critical Illness Pay was addressed according to the Circular, where it was held that the complainant did not meet the criteria. There is no contravention of the Payment of Wages Act in this regard.

CA-00026303-002

This is a complaint of penalisation pursuant to the Protected Disclosures Act.

The Protected Disclosures Act provides a statutory presumption in proceedings that a disclosure falls within the ambit of the Protected Disclosures Act “unless the contrary is proved” (section 5(8)). In this case, the respondent accepted that the disclosures fell within the ambit of the Act. It is not, therefore, open to me to find that ‘the contrary is proved’ or that the disclosures were not protected disclosures. While the respondent altered its previous stance, the fact of now accepting a disclosure is a protected disclosure is not something that causes detriment.

The Protected Disclosures Act provides important protections to employees and others when they seek to raise issues of relevant wrongdoing arising in the workplace. Section 3 of the Act broadly defines ‘penalisation’ as any act or omission causing detriment; it is not necessary that the employee incurs financial loss for the act or omission to amount to detriment. In this case, the complainant asserts that he has incurred financial loss.

In respect of causation, it is well established that the claimant must show that the protected disclosure was an operative cause in the employer’s act or omission that caused detriment to the claimant. The question is whether the disclosure was an operative cause, rather than the operative cause (see McGrath Partnership v Monaghan PD/15/1).

As set out in the Protected Disclosures Code of Practice (SI 464/2015), it is best practice for concerns of relevant wrongdoing to be raised directly in the workplace. This is why the protection of employees who make protected disclosures is so important; an employee is less likely to rely on an avenue of internal disclosure if they fear acts or omissions of penalisation. The employee retains this protection irrespective of whether an investigation determines that the relevant wrongdoing occurred.

It is also the case that an employer is entitled to manage the workplace and its employees even where a protected disclosure is made. In PD/18/12, the Labour Court held “The fact of a person having made a protected disclosure within the meaning of the Act of 2014 does not immunise the Appellant from a disciplinary response to behaviours which would ordinarily cause an employer to consider the initiation of such procedures provided such behaviours are not in themselves protected disclosures or arising in the course of making protected disclosures.”

The complainant points to the protected disclosures regime in the Australian state of Victoria. It is striking that their Protected Disclosures Act, 2012 gives statutory force to the “lack of immunisation” highlighted by the Labour Court. Section 44 of the Victoria Act states: “(1) Nothing in this Part is intended to prevent a manager from taking management action in relation to an employee who has made a protected disclosure.” It is implied in the Irish Act that an employer may continue to take management action in respect of an employee who has made a protected disclosure, so long as the protected disclosure is not an operative cause in bringing about the management action. This is the position set out by the Labour Court in PD/18/12.

The complainant sets out various instances of penalisation. One relates to the failure of the respondent to approve his application for Critical Illness Pay, which the respondent could have done even though he did not meet the medical criteria. A second relates to the email raising the possibility of removing his mobile phone. A third relates to how the complainant’s sick leave was managed, for example following his access to the workplace and the respondent’s statement regarding private employment. A fourth relates to the complainant’s return to work.

In respect of Critical Illness Pay, I note that the complainant did not meet the criteria and did not appeal this finding. It is true that the respondent could have approved this pay but did not do so. There is, however, no evidence to suggest that this exercise of discretion was in any way caused by the complainant’s protected disclosures. In reaching this conclusion, I note the absence of any evidence that the respondent had exercised this discretion to approve payment in other cases, where the complainant could say that he was differently treated. I also note the detailed and considered position set out in the respondent recommendation of the 9th April 2018. This reviews the complainant’s circumstances and concludes that they are not exceptional to allow extended sick pay to be awarded. Taking these findings together, I find that the decision not to award Critical Illness Pay was not caused in any way by the complainant’s protected disclosures.

The mobile phone issue was brought to the complainant’s attention following his data access request. At 9.46am on the 21st September 2018, a respondent HEO emails a colleague to say “[the complainant] has a Dept. Mobile Phone. Should this be cancelled and/or will his manager need to get this back?” His colleague replies at 9.51am to say “Do not cancel his mobile phone.” This is the extent of the matter; the complainant was never prevented from using the phone. There is clearly therefore no act causing detriment; the complainant retained the phone.

In relation to the other matters complained of as penalisation, I find that these were acts of management and not acts which caused detriment and nor were they acts caused in any way by the complainant’s protected disclosures. I note that the complainant attended work while on certified sick leave. This took place at the weekend and the respondent was unaware of this. The respondent was obviously concerned that an employee on certified sick leave should attend the workplace unannounced and outside of office hours. It took appropriate steps to address this.

The complainant was critical of the reference in the letter of the 16th October 2018 to him taking up other employment. The letter states “it would not be appropriate for you to engage in any temporary or part-time employment while certified as unfit to attend work. In the event that your medical practitioner certifies that you are fit to attend work, you would be expected to resume your duties within the Department.” Given that the complainant was an employee of the respondent and on certified sick leave, a statement reminding him that he cannot take up employment elsewhere while certified as sick is not objectionable and nor can it amount to detriment.

The complainant also raised his return from sick leave, setting out an agenda for this meeting. This includes “information / feedback / consultation” on the complainant’s protected disclosures. In reply, the respondent sets out that the complainant will attend a Resumption of Work meeting per the Circular. I note that the Circular refers to managing the return to work, for example over a phased basis or with amended tasks, location of work or retraining. Part 4.1 refers to the employer’s obligation to take appropriate measures to reintegrate the employee to the workplace. This includes the obligation to ensure that the complainant was ‘safe and supported’, which he sought in his draft return to work agenda.

In reviewing the evidence, it is clear that the respondent offered the complainant the supports to facilitate his return to work. The respondent sought to rely on the relevant Circular and the process contained therein to ensure that employees are safe and supported on their return. It is also clear that the return to work process is not an alternative way for an employee to demand feedback on protected disclosures. It is clear that the respondent sought to implement the Circular. It not agreeing to a bespoke process or for the complainant to include issues other than his return to work cannot be an act of detriment. As outlined above, the respondent is permitted to manage its employees, even where they have made a protected disclosure. This is what the respondent did in implementing the Circular.

I find that the respondent’s management of the complainant’s return to work was not an act which caused the complainant detriment and, therefore, cannot amount to penalisation. I find that this management was not in any way attributable to the protected disclosures.

For completeness, I find that there was no penalisation in how the respondent dealt with the data access request. The respondent complied with the request and there is no evidence of how the timing of this compliance led to penalisation. Also for completeness, it is not a function of the Workplace Relations Commission to review employer codes of practice on protected disclosures.

Taking these findings together, I find that the complaint of penalisation is not well-founded.

CA-00026303-001

I find that the complaint pursuant to the Payment of Wages Act is not well-founded.

CA-00026303-002

I find that the complaint of penalisation pursuant to the Protected Disclosures Act is not well-founded.

Payment of Wages Act / Deduction in line with contract of employment

Protected Disclosures Act / act or omission causing detriment

Employee not immunised from ordinary management action