ADJUDICATION OFFICER DECISIONS
Adjudication References: ADJ-00018177 & ADJ-00018186 & ADJ-00018190
Parties:
| Complainant | Respondent |
Anonymised Parties | A lecturer | A third level institution |
Representatives | None |
Complaints:
Act | Complaint Reference No. | Date of Receipt |
CA-00023543-001 | ||
CA-00023545-001 | 20/06/2018 | |
CA-00023547-001 | 20/06/2018 |
Date of Adjudication Hearing:
Workplace Relations Commission Adjudication Officer:
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
Background:
The complainant is an awarding winning lecturer in mathematics and works at a third level institution. The complainant says that she has been on receiving end of many acts of penalisation because of protected disclosures she made, including one relating to ‘Project Maths’. The respondent denies the claim. |
Summary of Complainant’s Case:
The complainant outlined that she was seeking redress under both the section 12 and 13 of the Protected Disclosure Act. During the hearing, the complainant agreed that the respondent to each complaint should be amended to the university.
The complainant said that there were recent and horrendous acts of penalisation. She had raised a protected disclosure in relation to the impact of Project Maths on the teaching of mathematics at third level. She said that people did not like her raising this issue and the respondent did not like this. She said that this adjudication was the first occasion she had the right for a hearing in this matter.
The complainant said that she raised her concerns in the media and articles quoted her about the disclosure. She also did a paper on protected disclosures, which she dedicated to Sgt Maurice McCabe. The complainant said that the respondent has not supported her in the bullying matter.
The complainant emphasised that there was a great deal of “Gaslighting” abuse in this case, that is where a person making a complaint is manipulated into withdrawing the complaint. They then say that the original complaint was vexatious.
The complainant outlined that she was seeking compensation as redress. She had suffered panic attacks and three nervous attacks. While things improved over the last two years, she was seeking redress for the years of gaslighting, medical referrals, disciplinary hearings and investigations.
The complainant outlined that an occupational health report had recommended that she go on reduced hours, but this was binned. As of the hearing, she was out on sick leave and had been out for the last few weeks. Her line manager was now looking for her to justify her non-attendance.
The complainant said that the bullying was ongoing from 2012 to 2017. Things improved over the last two years, in particular because of her relationship with the HR representative in attendance at the adjudication.
The complainant said that her relationship with the three staff members named in the complaints was very bad. She outlined that three weeks before the hearing, the respondent had said it would discipline her for a post she put on LinkedIn. The complainant outlined that she had made protected disclosure to the named head of the audit committee some years before. The head of the audit committee never responded to her. This disclosure related to how the respondent treated her. She never heard anything until a recent follow-up where the respondent said that it was aware that the complainant had made a disclosure but did not have her document. The complainant summarised the issues and submitted this to the respondent. She had engaged with the investigation, which was only superficial. She had no right of reply.
The complainant outlined that she has taken High Court proceedings against the respondent. This relates to bullying and not to penalisation.
The complainant outlined that she made a complaint of a breach of ethics after developing a new project-based assessment process for mathematics. It sought to develop mathematical identity in students and to avoid plagiarism. The students made positive comments and the external examiner was happy. She sought to write this up in several papers. The lecturer colleague came back from a long sabbatical and the complainant told her of the research design and its success in combatting plagiarism. The lecturer colleague claimed the idea as her own and wrote several papers without referencing the complainant. The lecturer colleague refused to mediate when the complainant complained about this.
This was dealt with by a formal investigation by two heads of school. They found that the complainant had established a prima facie case and concluded that the matter should go forward to formal investigation. The complainant said that she was then left in the dark and was intimidated by the other head of school into withdrawing the complaint. The matter was referred to an academic panel in 2015. The complainant presented a booklet to show that her work had been copied. The panel refused to accept her submission and concluded that there was insufficient evidence to support her complaint. The complainant had sought to appeal this outcome but there was silence since then.
The complainant said the respondent Registrar did not want her to win the case and he was friendly with the lecturer colleague. The Registrar did not want this on his plate. He raised the issue of confidentiality but was not able to say what this meant.
The complainant outlined that in 2015 she was subject to a Stage 3 disciplinary process for an email she sent about the lecturer colleague. These were emails she sent regarding the investigation into plagiarism. They looked at six emails and this was done by one of the employees named as a respondent in this case.
The complainant submitted that the respondent was out to get her when she wrote to a national newspaper in 2012 regarding Project Maths. She had identified a discrepancy in the questions posed in previous years. The questions were easier, lowering the standard of mathematics necessary for hard sciences. The new standard was more suitable for the mathematics used in economics rather than the hard sciences. People who were senior in maths wrote to the complainant to agree.
The complainant collaborated in research into Project Maths with a senior academic from another university. This academic drafted a report on behalf of the group but refused to send a copy to the complainant. She wanted the respondent to support her in the dispute that followed the academic leaving the project. She wished to mediate with the academic, but the respondent did not do anything. The complainant had to complete the report herself and had a breakdown because of the pressure and the work. Her doctor wrote to the academic’s university to detail the stress caused to her by his refusal to provide the report. His university wrote to the respondent to say that the complainant had made unfounded allegations, but the respondent did not tell her of the letter for two years. The other university also said that she had sent many emails, but they related to the work of the group. The respondent then restricted the complainant’s email for four months between August 2012 and January 2013. She could send internal emails but not external ones. She was not afforded fair procedures or a right of reply. Two of the employees named as respondents told her that her external email was restricted.
The complainant said that she then made a bullying complaint. She was told that her access to external email would not be restored until she agreed to withdraw her bullying complaint. This was gaslighting. The matters raised in her solicitor’s letter were not investigated. Being forced to withdraw her complaint amounted to severe penalisation. She suffered psychological injuries as a result. She said that the disciplinary action amounted to severe penalisation as they stitched her up for sending emails. She was issued with a final warning in 2015 and there were further disciplinary proceedings after this.
The complainant said that the lecturer colleague had issued proceedings against her, serving them on her at work. The respondent asked the complainant to withdraw her allegation that she was being blackmailed. The lecturer colleague made a complaint about her to the respondent. This was that the complainant had asked a law lecturer about plagiarism, but this was related to an academic paper. The lecturer colleague said that the complainant was badmouthing her in the corridor, which the complainant denied. This allegation led to a four-year investigation, which later exonerated the complainant. The allegation could have led to a disciplinary process. She said that the lecturer colleague’s last-minute appeal was gaslighting to weaken the complainant’s High Court case. The complainant said that her criticism of the respondent was that this allegation was a minor issue but took so long to investigate and could have led to disciplinary proceedings against her.
The complainant outlined that she met the respondent audit committee on the 13th December 2018. This meeting took place in a named hotel. The audit committee interviewed her, but they closed down the issues they did not like. They repeatedly raised the issue of correspondence from an academic journal to the respondent. In 2015, the complainant had written to the editors of this journal to say that there was plagiarism in research published by the lecturer colleague. The journal asked the complainant for a summary of her complaint. The journal determined that there was evidence the lecturer colleague had breached the code of ethics and she was asked to acknowledge the complainant’s input. The lecturer colleague refused. The journal then referred this to the respondent, but nothing was done. The journal then wrote to say that they were closing their investigation and they were not in a position to deal with it. The journal later stated that there was no breach of ethics, reversing what they had said before. The audit committee then used the journal’s finding against the complainant but there was no investigation and she had no right of reply. The audit committee looked at this in 2018 as the lecturer incident was part of the protected disclosure.
The complainant outlined that the protected disclosure arose from 8 or 9 emails she sent between the 14th and 31st December 2018. She did not have the dates of her other protected disclosures.
The complainant outlined that the respondent had referred her several times to occupational health or to her own doctor. The referrals amounted to penalisation as she was saying that she was being bullied. An occupational health assessor refused to certify her as sick but said that she was being bullied.
The complainant said that the respondent tried to stitch her up by referring her to a psychiatrist. She was assessed and the psychiatrist said she was not bi-polar. He said that the complainant had a great memory and recommended she go on reduced hours. This assessment took place in 2015, but the respondent did not approve the reduced hours.
The complainant outlined that the respondent had made three or four threats to dismiss her. This occurred when she said she was being blackmailed in 2015. The respondent also threatened to fire her when she complained of being harassed by the lecturer’s solicitor. The respondent threatened to fire her every time she complained about the lecturer. The complainant said that she reported this to the Minister for Education in 2015, who replied that she should first exhaust the internal bullying and harassment procedure. She only took one case of bullying but would not do so again. She was accused of bullying, but this was blatant lies. The respondent was trying to get her to resign or go out sick. She outlined that the consequences to her health have been traumatic.
The complainant said that staff voted her onto the respondent Governing Authority. She resigned in or around 2014 after the respondent refused to change the bullying and harassment & grievance procedures to include external complaints (i.e. reflecting her experience with the academic based in another university). Consideration of external complaints was necessary as there is so much collaboration in academia. She addressed this issue in correspondence with all staff and this did not go down well with the respondent.
The complainant outlined that the 2018 protected disclosure is now before the respondent in its new form. There was no outcome to the December 2018 meeting with the audit committee. The complainant outlined that she had not promoted and was discriminated against at interviews. The complainant advanced that her protected disclosures relate to the disclosures about Project Maths, the plagiarism issue and the issues referred to the head of the audit committee.
In reply to the respondent, the complainant said that she was disadvantaged in not being represented at the hearing. She said that a hearing dominated by procedure does not serve justice. She made a disclosure to the head of the audit committee, which was never dealt with. She had not been on notice of a previous adjudication scheduled by the Workplace Relations Commission. She said that there had been threats to stop her pay. She had invoked the bullying and harassment procedure after the referral to the Department of Education and the respondent refused to carry this out.
The complainant disagreed with the submission regarding the application of the ‘but for’ test. She said that she was telling the truth. She has established the link between the disclosures and the acts. She said that bullying is huge in education especially for women and in particular in mathematics. The complainant wished for the message to go out that bullying and gaslighting should never be acceptable and that institutions should be penalised. |
Summary of Respondent’s Case:
The respondent raised several preliminary objections. There was a previous adjudication which the complainant did not attend. This raised res judicata, in particular as the complainant had not appealed the decision. The respondent accepted that it had not received notice of this earlier adjudication and that it was fair to surmise that the complainant had also not received notification. It commented that the complainant did not appeal the no-show decision and has said that she was ill at the time.
The respondent objected to how the claim was presented as they were generalised claims. It was not clear what the protected disclosures were. The respondent objected to anything beyond the six-month cognisable period. This included the issues from the Project Maths disclosure and the restriction of the complainant’s work email.
The respondent denied the allegation of penalisation. It submitted that the claims are frivolous and vexatious as indicated by the length of time between the events complained-of and the complaint to the Workplace Relations Commission. The respondent commented that these complaints were submitted in April 2018, but much of this occurred after the complaint was lodged. The complaint before the Workplace Relations Commission duplicate the High Court proceedings.
The respondent submitted that this is not a valid claim, that it was time barred and represented re-litigation of the High Court case and the previous WRC case.
The respondent submitted that if it were held that there was a protected disclosure, the onus was on the complainant to show that there is a link between the protected disclosure and the act she says is penalisation. The burden of proof rests with the complainant to do this. The respondent submitted that the complainant had not satisfied the ‘but for’ test in respect of any of the acts or omissions claimed to be penalisation. |
Findings and Conclusions:
The complaints are made pursuant to Protected Disclosures Act. The complainant presented the complaints as contraventions of both sections 12 and 13 of the Act. As discussed at the adjudication, the Workplace Relations Commission has jurisdiction to hear complaints of penalisation per section 12 and the Second Schedule of the Act. Claims pursuant to section 13 of the Act are not matters for the Workplace Relations Commission but are claims in tort to be advanced via the civil courts. I have proceeded in assessing the issues raised by the complainant as claims of penalisation per section 12 of the Act.
The respondent made several preliminary submissions at the outset of the hearing. The first was that the complaints were not made against the employer, but against three named staff members. This is true, and as I indicated at the hearing, I have amended the report to reflect that the complaints are made against the respondent as the third level institution established by statute. I have named the respondent to reflect the changes enacted in 2019. This step did not prejudice the respondent as it had effectively taken carriage of defending the cases and attended the adjudication in this capacity.
The respondent’s second preliminary submission was that these proceedings were res judicata. This arises as the complainant previously submitted a complaint to the Workplace Relations Commission pursuant to the Protected Disclosures Act. This was scheduled for adjudication on the 15th March 2016. Both the complainant and respondent explained that they were not on notice of the hearing and inevitably, did not attend. While a ‘no show’ decision was subsequently issued by the Workplace Relations Commission, this does not prevent these subsequent complaints from proceeding. In circumstances where neither side was aware of the scheduled date of adjudication, no substantive findings were made in respect of this case and the doctrine of res judicata is not engaged. In reaching this finding, I note the decision in Mythen v Employment Appeals Tribunal [1990] ELR 1 where it was held that a claimant has the right to a full and fair first instance hearing, and the availability of an appeal was not a substitute for this right.
The respondent further pointed to the limitation period set out in the Workplace Relations Act and applicable to complaints pursuant to the Second Schedule of the Protected Disclosures Act. The limitation period is that of six months, extendable to twelve months with reasonable cause. This requires that there is a contravention within the cognisable period. In claims of penalisation arising from a protected disclosure, the question is whether there is an act or omission that constitutes penalisation within the cognisable period. While a claimant must show that the protected disclosure was an operative cause in the act of penalisation, the protected disclosure does not need to have been made in the cognisable period. Indeed, the protected disclosure can pre-date the enactment of the Protected Disclosures Act (section 5(1)).
The complaint was referred on the 20th June 2018 and ordinarily, the cognisable period is, therefore, the six months before this, i.e. the 21st January 2018 to the 20th June 2018. I do not see any reasonable cause to extend the cognisable period beyond the period of six months.
Section 3 of the Protected Disclosure Act defines penalisation broadly: “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 assessing the evidence, it is necessary to consider the broad scope of acts or omissions that may count as penalisation. The complainant must show they have incurred detriment, but this need not be financial loss. A complainant must further show that the act or omission causing detriment was ‘but for’ for the making of a protected disclosure. It is also necessary to bear in mind that the employer’s motivation for any particular act or omission is central to finding whether the protected disclosure was an operative cause.
In McGrath Partnership v Monaghan PDD162, the Labour Court held “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. This suggests that where there is more than one causal factor in the chain of 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. This involves a consideration of the motive or reasons which influenced the decision maker in imposing the impugned detriment.” In a claim of penalisation, the test is whether the protected disclosure was an operative cause, rather than the operative cause.
As outlined by the Labour Court in McGrath, the ‘but for’ test requires consideration of both the question of motive and the reasons which influenced the decision-maker. The Labour Court also acknowledged that there may be more than one cause to the employer’s act and the test is whether penalisation was an operative cause. This is a subjective analysis of the motives of the employer and what influenced it. Part of this must include an analysis of the course of dealing between the parties to assess the motives and influences at play at the time of an alleged act of penalisation. In a case such as this one, it necessitates consideration of the wider course of dealing and through this prism, to assess whether the protected disclosure/s was an operative cause.
The Labour Court has also established that events that post-date a complaint may be considered in assessing incidents that take place within the cognisable period (see Hurley v Cork County VEC EDA1124).
As set out above, the cognisable period for these complaints is the first six months of 2018. In assessing causation, it is necessary to have regard to the wider course of dealings between the complainant and the respondent. Regard can also be had to subsequent events.
While there was voluminous documentation submitted in relation to this case, the complainant particularised her complaints and grievances in her verbal submissions to the adjudication. She also acknowledged support she received from academic colleagues and staff in the respondent, for example the HR manager and a head of department.
The protected disclosures and acts or omissions constituting detriment raised by the complainant are varied in nature and form a complex matrix. The complainant raised important issues relating to Project Maths. The matters involved parties outside of the respondent. This includes an academic in another university, an international journal and the plagiarism complaint addressed by academics from a different third level institution. The complainant was not able to send external emails for some months in 2015. She complains about not being able to advance in her career, for example following interviews. The issues involve complaints and legal proceedings instigated between the complainant and the lecturer colleague, both employees of the respondent. There are proceedings against the respondent too. A further complicating factor is that the complainant’s initial referral to the audit committee was not progressed and was only belatedly followed up in 2018. This failure to progress the first referral appears to rest with the then chair of the audit committee (an external party).
Another factor in this case is that some of the events advanced as detriment are not readily discernible. The complainant emphasised incidents of ‘gaslighting’, which is often subtle manipulation. Other events were very protracted, for example the extensive bullying investigation into the complainant (which exonerated her). They include medical referrals, which the complainant objected to. Other events were not protracted, for example the respondent not pursuing the complainant’s own bullying complaint. The complainant outlines that she has been threatened with dismissal and to stop her pay.
In preparing this report, I have carefully considered the complainant’s evidence at the adjudication. I have read the documents the complainant submitted, including the paper on the Protected Disclosures Act. In my view, the Act very much covers both acts and omissions of an employer and both can constitute penalisation. I took careful notes during the adjudication, which I know was a stressful event for the complainant. We took breaks during the hearing in order to allow all the aspects of this case to be discussed.
Having prepared this report as thoroughly as I can and taking the complainant’s evidence at its height, I do not see any event in the cognisable period, be it an act or omission, which amounts to penalisation. While there have been recent issues following a LinkedIn post, the complainant was on sick leave during this period and spoke of her good relationship with the HR manager in attendance at the hearing. It follows that the complainant has not made out that there has been penalisation, as defined in the Protected Disclosures Act. I find, therefore, that the complaints are not well-founded. |
Decisions:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.
CA-00023543-001 I decide that the complaint of penalisation pursuant to the Protected Disclosures Act is not well-founded.
CA-00023545-001 I decide that the complaint of penalisation pursuant to the Protected Disclosures Act is not well-founded.
CA-00023547-001 I decide that the complaint of penalisation pursuant to the Protected Disclosures Act is not well-founded. |
Dated: October 29th 2019
Workplace Relations Commission Adjudication Officer: Kevin Baneham
Key Words:
Protected Disclosures Act / penalisation / cognisable period Right to a full hearing at first instance Mythen v Employment Appeals Tribunal [1990] ELR 1 |