ADJ-00021748

Complainant

Respondent

Anonymised Parties

A Civil Servant

A Government Department

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00028464-001

16/05/2019

The complainant says he made a number of protected disclosures to his immediate manager commencing in February 2019.

These disclosures concerned the degree of imprecision used by the Department on certain official forms which he claimed had potentially serious adverse consequences, including of a legal nature.

There had been two sets of complaints; one a set of emails in April 2019 and this was followed by a second set in May.

He made these to his manager, and they alleged that negligence, or gross negligence was involved on the part of those making the errors.

The respondent rejects the claim that a Protected Disclosure was actually made.

It has a formal policy on the making of Protected Disclosures which was not complied with. The manager to whom the complainant communicated the information at the heart of the complaint was not aware that he was being given a Protected Disclosure.

There is a requirement that a person making a disclosure bring forward information and does not merely make an allegation or express a concern.

In any event no reasonable person could regard the information at the heart of the disclosures as falling within section 5 (3) (g) of the Act as being gross negligence or gross mismanagement.

The attempts to establish a causal link between the material he communicated, and an alleged subsequent detriment is also without merit.

He claims that he was denied the opportunity to accrue leave-in-lieu of overtime while other colleagues were. and are allowed to do this.

Under Department Circular 14 of 2014 (submitted in evidence) time off in lieu may be granted instead of payment at the discretion of the Head of Department.

The complainant has not been treated any differently to his co-workers. Leave in lieu is not permitted by current management and this policy is applied uniformly to all staff working overtime.

In its determination in Aidan & Henrietta McGrath Partnership v Anna Monaghan PD/15/1, the Labour Court stated:

“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.”

The Respondent considers that there is no causal connection between the implementation of its ‘leave in lieu’ practice which is implemented consistently with all staff.

In any event, the practice of not claiming time off in lieu was clarified with the complainant in January 2019 and therefore there can be no causal connection with the complaint that he made in May.

b) He claims that he was denied the opportunity to start work before 8am while other colleagues were allowed to do this.

Flexitime is available in the Department for certain grades. Flexitime provides officers with the opportunity to alter their start and end times and duration of their lunch break, provided that they work their minimum contracted hours.

This flexibility can only be exercised within “flexibands”, while normal hours must be worked during core office hours. In this regard, core office hours are 10am - 12.30 and 2.30 – 4pm. The “flexibands” are as follows: 8am to 10am, 12.30-2.30 and 4 to 7pm. Time worked before 8am and after 7pm does not gain any credit.

In certain exceptional instances line managers within the Department have approved an individual to gain credit on their clock for time worked before 8am or after 7pm.

No one at the complainant’s grade is permitted to do this in the Section.

The current management team has not extended this facility to any other staff as they consider that the current flexi bands give staff sufficient flexibility and it will be discontinued should the three concerned staff transfer to other sections. Management met with the complainant in March and September 2018 to explain the position.

All of the staff that have been permitted to do this are at Clerical Officer grade and work on processing applications. The complainant is not a Clerical Officer and does not process permit applications. He was not permitted to do this at any time and no change in practice has been applied. He raised this issue with his managers in March and September 2018 and was refused.

Additionally, he has since February 2019 regularly worked paid overtime, with management approval, prior to 8am.

As set out above, the Labour Court in Aidan & Henrietta McGrath Partnership v Anna Monaghan PD/15/1, made it clear that the detriment giving rise to the complaint must have been incurred because of, or in retaliation for, the Complainant having committed a protected act. In other words, “but for” the complainant having committed the protected act, he or she would not have suffered the detriment.

In this case, the complainant sought permission to begin work prior to 8am in March 2018.

This request was refused in March 2018. He sought permission again in September 2018 and again, this request was refused. These requests and their refusals occurred prior to the making of the alleged protected disclosure in May 2019. There is therefore clearly no causal connection between the alleged protected act and the Department’s refusal of Mr. McCabe’s request to begin work prior to 8am.

c) He claims that he was denied the opportunity to work overtime on Saturday during Shorter Working Year while other colleagues were allowed and asked to do this.

Details were provided of Circular 14 of 2009 which sets out the rules related to Shorter Working Year. The purpose of the shorter working year scheme is to permit civil servants to balance their working arrangements with outside commitments. Under the terms of the scheme, special unpaid leave is available as a period of 2, 4, 6, 8, 10 or 13 consecutive weeks.

Circular 14 of 2014 sets out the rules relating to overtime. Section 1.2 states the following:

“Overtime is the payment given to an officer for extra attendance outside of the standard working week. It is only payable after the completion of the required working hours for the grade in question.”

The complainant’s direct line manager contacted HR on 10th May to enquire whether it was possible for someone on shorter working year to come into work on a Saturday and work overtime. HR provided advice to the complainant’s line manager on the 14 May that overtime was not permissible where an officer has not completed the required working hours.

The complainant’s line manager notified him of this, enclosing the email from HR, on the 15 May.

The complainant raised this matter with his manager claiming penalisation, in an email sent on 15 May. A series of emails followed which were eventually escalated to HR due to the serious nature of the claims made by the complainant. HR was going to meet him and his line managers, however he lodged his complaint with the WRC shortly before taking Shorter Working Year, which left no opportunity to meet with him to discuss same.

In the thread of emails, the complainant referred to two staff members whom he claims were permitted to work overtime while on shorter working year in 2018. In the first of these instances it was the complainant who had contacted the individual to ask them while on shorter working year to work overtime.

The Department understands that management in the complainant’s work area were unclear on the interpretation of Circular 14 of 2014 in previous years and acknowledged that they did permit overtime for staff on shorter working year. Since the matter was clarified in May 2019, no staff members have been permitted to work overtime while on shorter working year.

There is no causal connection between the making of a complaint on 7 May 2019 and the refusal to permit overtime while on shorter working year.

The complainant’s line managers enquired of HR whether it was possible to permit the working of overtime and upon receipt of advice notified the complainant. There is no discretion permitted on this point within the Circular and therefore the decision to allow or refuse overtime was not one for the line managers to make. HR were unaware that the complainant had made a Protected Disclosure and therefore their actions cannot have been caused by the complaint.

While management practice has changed in the section on this matter, it changed as a result of advice from HR following a previous misunderstanding of a Circular. Practice in both instances was

applied consistently within the Unit for all officers. The rules of the Circular are now being correctly applied within the Section.

No other staff have been permitted to work overtime during shorter working year in 2019.

d) He claims that he was not allowed to take Annual Leave to study for exams, which he asserts led to him deferring his exams. He claims that he was allowed to take Annual Leave in 2018 for the same purpose.

The Respondent rejects this.

The complainant has not provided full details of his application for leave. It is the case that he was approved in late 2018 to take 13 weeks unpaid leave in the summer of 2019 under the Shorter Working Year scheme. The complainant informed his line manager in early 2019 that he intended to apply for further leave in order to take five months leave from the section to focus on his exams.

His line managers met with him to discuss this request (note of meeting provided). The request included a mixture of annual leave, flexi leave, study leave, and the Shorter Working Year already applied for.

In addition, Circular 14 of 2009 makes it clear that Shorter Working Year is granted at the discretion of management and subject to business needs. The circular also sets out the following rules regarding restrictions on taking leave:

“Restriction on taking leave

9. The starting date for special leave will be agreed by the officer with local management (see paragraph 22), having regards to business demands, including the need to train replacement staff if any. Subject to the discretion of management participants will not be granted leave (paid or unpaid) in the four weeks immediately prior to and following the period of special leave. This restriction will not apply to leave, the granting of which is governed by statute, such as maternity, adoptive,

parental and carer’s leave.”

It should be noted that not only did the complainant’s managers approve his application for Shorter Working Year, they also were willing to show some discretion regarding permitting him to take some Annual Leave in the period before his Shorter Working Year.

The Department considers that management took an approach that sought to facilitate leave for the complainant that met some of his requirements while also managing the business needs of the Department. It is noted that the complainant did not pursue the application for leave any further. To suggest penalisation is extraordinary in light of the flexibility and favourable discretion that had been offered to him by his managers.

The complainant requested the five months absence in March 2019. The decision not to approve the full extent of the request was communicated to him before he made the complaint in May 2019 and therefore there can be no causal link between the alleged disclosure and the refusal of the request. In other words, it cannot be said that “but for” the complainant having committed the protected act, he or she would not have suffered the detriment.

e) He claims that he is ostracised by Management through being excluded from meetings, in particular those held to discuss the issues he raised which relate to his Protected Disclosure.

The complainant has provided no specific details to substantiate this claim. He has referred in particular to being excluded from meetings held to discuss the issues raised in his complaint.

No dates are put forward to suggest when and if such meetings took place. Regardless of this, it is the case that there is no entitlement to be involved in the recipient’s consideration of the complaint. In this case the complainant had raised concerns of a procedural nature and documented these concerns. The Respondent is unclear therefore on why he feels that he should have also been invited to meetings to discuss the matter. The recipient acknowledged the complaint and notified the complainant of her consideration of same in line with the requirements of the policy.

The Respondent rejects the claim that any penalisation took place and asserts that there is no causal connection between the complaint being made and the decision of the recipient not to meet with individual. It is also the case, that the complainants line manager engaged with the complainant on a number of occasions regarding his concerns about administrative procedures.

The complainant was invited to all meetings relevant to his grade and role that took place including section meetings, revocation meetings and audit meetings. It is also the case that the section manager operates an “open door” policy.

In conclusion, the Respondent firstly rejects the fact that a Protected Disclosure was in fact made at all. The complainant failed to comply with the Department’s internal procedures and therefore the email correspondence from the complainant to his manager does not constitute a Protected Disclosure.

Without prejudice to this, the Respondent also submits that there was no “relevant wrongdoing” within the meaning of section 5(3)(g) of the Act and that the complainant’s belief that the Department’s actions showed a relevant wrongdoing was not objectively reasonable.

Secondly, the Respondent strongly rejects the allegations of penalisation for making a Protected Disclosure. It also puts on the record that some of the claims made are extraordinary, not backed up with sufficient example or detail and in parts are entirely baseless.

While an obvious, first issue to be decided in such cases is whether the complainant actually made a protected disclosure this really only becomes a significant matter if in fact there has been penalisation as a result of doing so.

It is not in dispute that the matters he raised were matters of concern and needed to be corrected and which following investigation were addressed.

The complainant’s description of the errors which formed the basis for his purported ‘whistleblowing’ as being gross mismanagement and gross negligence did not stand up to even superficial scrutiny.

It was also accepted that in bringing these matters to the attention of his management the complainant at no stage identified the complaints as being made as Protected Disclosures.

The Protected Disclosures Act 2014 provides a good flavour at Section 3 of the nature of ’relevant wrongdoings’ for the purposes of making a protected disclosure.

They include

(a)    That an offence has been, is being or is likely to be committed

(b)    That a person has failed, is failing or is likely to fail to comply with any legal obligation, other than one arising under the worker’s contract of employment or other contract whereby the worker undertakes to do or perform personally any work

(c)     That a miscarriage of justice has occurred, is occurring or is likely to occur

(d)    That the health or safety of any individual has been, is being or is likely to be endangered

(e)    That the environment has been, is being or is likely to be damaged

(f)      That an unlawful or otherwise improper use of finds or resources of a public body, or of other public money, has occurred is occurring or is likely to occur

(g)    That an act or omission by or on behalf of a public body is oppressive, discriminatory or grossly negligent or constitutes gross mismanagement, or

(h)    That information tending to show any latter falling within any of the preceding paragraphs has been, is being or is likely to be concealed or destroyed.

While the respondent has addressed in some detail all of the issues identified as acts of penalisation in its response above the complainant accepted in the course of the hearing that his main, indeed only complaint related to overtime working on Saturday. In the event he offered little in the way of supporting evidence for the other matters.

This specific complaint is fully addressed above in the respondent’s submission and in my view, it fails both tests which might be applied; that of an actual detriment and being causally connected to the alleged making of a complaint.

For eases of reference here is the relevant extract from the respondent submission above.

There is no causal connection between the making of a complaint on 7 May 2019 and the refusal to permit overtime while on shorter working year.

The complainant’s line managers enquired of HR whether it was possible to permit the working of overtime and upon receipt of advice notified the complainant. There is no discretion permitted on this point within the Circular and therefore the decision to allow or refuse overtime was not one for the line managers to make. HR were unaware that the complainant had made a Protected Disclosure and therefore their actions cannot have been caused by the complaint.

While management practice has changed in the section on this matter, it changed as a result of advice from HR following a previous misunderstanding of a Circular. Practice in both instances was applied consistently within the Unit for all officers. The rules of the Circular are now being correctly applied within the Section.

I accept this submission and find that the ‘penalisation’ complained of was no more than the application of a standard Civil Service regulation, and that there was no element of ‘retaliation’.

For the sake of completeness, I find that the complainant’s actions do not meet the requirements for a protected disclosure especially as defined in Section 5 (3) (g) as set out above.

While the matters complained of by the complainant had potentially some serious consequences they did not arise from ‘wrongdoing’ in the sense intended in the statute, either in their nature or degree of gravity.

The language of subsections (a) to (g) above clearly import acts of deliberate wrongdoing of a very serious nature. The clerical practices complained of were in need of change (and were changed) but there are many practices in all organisations and businesses that may be reviewed and improved without giving rise to an imputation of wrongdoing, as envisaged in the Act.

None of the alleged retaliation can be traced to the actions of the complainant in raising the matter he did and the complaint fails.  

For the reasons set out above I do not uphold Complaint CA-00028464-001 and it is dismissed.

Protected Disclosure, penalisation.