Complainant

Respondent

Anonymised Parties

Industrial Supervisor

Incarceration and Reformatory Service

Representatives

Owen Keany BL, Clodagh Gill & Aoife Keane  Sherwin O'Riordan,

Peter Leonard BL, Karen Duggan & Claire Ryan, Chief State Solicitors Office, Vivienne Matthews-O’Neill BL, David Walsh, Joe Hernon, Liam Dowling

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-00028236-001

08/05/2019

Background:

The Complainant’s claims against the Respondent have been brought pursuant to the Protected Disclosures Act 2014.

It is submitted that the Respondent penalized the Complainant in response to the Complainant raising complaints and/or concerns regarding the certain improper practices of the Respondent, which complaints amounted to a protected disclosure within the meaning of Section 5 of the Protected Disclosures Act 2014.

The Complainant began working for the Respondent on the 29th August 1994. The Complainant has shown unwavering commitment to his job and his duties at all times during his employment and has sought to progress his career by way of promotion wherever possible. The Complainant currently occupies the role of Industrial Supervisor.

The Complainant’s Protected Disclosure

Following his unsuccessful application in respect of the Chief Officer II role, the Complainant became more and more concerned regarding his career progression with the Respondent, and he began to take a more active role in tackling the issues that he faced. In particular, the Complainant had not undergone an annual review in over ten years – an omission that breached the rules governing public service bodies and, it is submitted, resulted in the Complainant being assigned a Performance Management and Development (“PDMS”) score that was both arbitrary and bore no direct relationship to his performance and standards of work. In that regard, the Complainant issued an email to EW in the Department of Justice on the 22nd January 2019, the email stated “I have not had a [Performance Management and Development Service] six monthly or yearly interview in approximately a decade.  Despite this fact, when I go for a promotion my rating is magically plucked from the sky with no reference to any performance review process that I was involved in or signed off on”.  The email goes on to state that “my submission is that a great many successful candidates an Respondent recruitment panels have also had their ratings assessed in the same manner as myself”.

Performance Management and Development Service (“PMDS”) was introduced to the public service in or around the year 2000 and was introduced to the respondent in or around 2008. The service was intended to clarify the contribution which each role within the public service makes to the achievement organizational objectives and identifying the required competencies. PMDS was also introduced to provide for training and development as required to enable employees to achieve the competencies required through that training and development. It is a compulsory aspect of the public service.  

On the 23rd January 2019 the Complainant sent a further email to EW. In this email the Complainant stated that he wanted to keep the matter confidential, “especially so if local management are embroiled in the charade of PMDS. I believe senior management in XXX HQ XXX are well aware of what is happening with regard to PMDS.”  The Complainant received no adequate response to this correspondence.

On or about the 1st February 2019, the Complainant was summoned to attend a meeting with the facility’s assistant manager. At the beginning of this meeting, he was advised that he had been requested by HR of the Respondent, to speak to the Complainant about PMDS. He requested that the Complainant disclose what he knew about the administration of PMDS in his place of work. The Complainant responded that he was aware that no PMDS had been carried out by the Respondent in over a decade. During this meeting JH was hostile towards the Complainant, creating an atmosphere of intimidation. The meeting marked the beginning of a deliberate and malicious campaign of isolation and intimidation of the Complainant at the hands of the Respondent.

On the 4th February 2019, Chief Officer II (Work and Training) handed out forms to all employees in respect of PMDS. When fellow employees questioned the purpose behind the forms he stated, “you all know where this is coming from”, clearly referring to the Complainant.  It is submitted that this statement was not made in isolation and formed part of a wider conversation happening in respect of the Complainant but to which the complainant was not party. The comment was clearly intended to intimidate the Complainant and in an effort to deter the Complainant from raising any further complaints.

On the 15th February 2019, the Complainant received a notification from the Respondent that DW had been appointed to conduct an investigation into the Complainant. The details of the allegation forming the subject matter of the investigation were that the Complainant had been observed taking a number of bags containing unknown material out of the facility. That notification requested that the Complainant prepare a written report in response.

The Complainant prepared his report and furnished it to the Respondent on the 25th February 2019. At the end of this report, the Complainant sought from the Respondent the following information:-

i.                     The name of the person or persons making the allegation against him;

ii.                   A copy of their report;

iii.                 The description of the bags removed;

iv.                 The material that the bags were made from;

v.                   Whether or not the content of the bags was visible;

vi.                 The time that the bags had been removed from the facility;

vii.                Copies of any CCTV footage showing the removal of the bags;

viii.              Details of any other staff members that were placed under investigation for removing bags from the facility.

The Complainant received no response to this request for information but was summoned to a meeting with the facility manager, on the 1st March 2019. At that meeting, the Complainant was given confirmation that no investigation had taken place, and it was indicated to him that the matter was at an end. It is submitted that the notification of an investigation into the conduct of the Complainant was a deliberate and malicious act instigated by the facility’s assistant manager and Chief Officer. It is submitted that despite being on notice of the treatment meted out to the Complainant by them, the Respondent failed to take any or any adequate action to prevent the recurrence of same. 

In or around the beginning of February 2019, the Complainant sought approval from the Respondent to order timber for his workshop. This ordinarily would have been authorized by them without difficulty and the materials would have been received by the Complainant within a period of weeks. At the beginning of May 2019, the Complainant realized that authorization to order his materials was being unreasonably withheld by either of them without any justification. The materials in question were required for a project undertaken by the Complainant each year, where he would deliver picnic tables constructed in the facility workshop to third parties. This project was of particular significance to the Complainant, and by May the previous year his workshop had produced approximately 50 tables. The Complainant was eventually given authorization to order the materials when he escalated the matter to the facility manager. This immediate authorization clearly demonstrates that the purpose of withholding authorization for a period of months was none other than to inflict distress on the Complainant. The Complainant became absent from work on sick leave for a period of two weeks, beginning on the 8th May 2019, as a result of the treatment to which he was subjected.

Legal Submissions

For the purposes of the Protected Disclosures Act, 2014, a protected disclosure is the disclosure of any ‘relevant information’ made by a worker. On 22nd January 2019, the Complainant raised a complaint with the Respondent about its’ failure to administer the PMDS programme as required. It is submitted that the Respondent’s failure to do so constitutes oppressive, discriminatory, grossly negligent or grossly mismanaged acts or omissions by a public body as set out in Section 5 of the Protected Disclosures Act.

Section 12(1) of the Act stipulates that an employer shall not penalise or threaten penalisation against an employee for having made a protected disclosure. As a result of the Complainant’s actions and as an immediate response thereto, he was subjected to an immediate campaign of penalisation at the hands of the Respondent.

In the Adjudication Officer’s Decision, A Complainant v A Respondent ADJ-0004519, the complainant made protected disclosures pursuant to the Protected Disclosures Act, 2014. As a result of having made those disclosures, the complainant was subjected to disciplinary process and was issued with a disciplinary sanction consequent upon same. It was found that there was no justification for imposing a disciplinary sanction, that the process had been a sham, and the purpose of the sanction was to penalise the Complainant on foot of him having made a protected disclosure. 

In the case of Monaghan v Adrian & Henrietta McGrath Partnership PDD162 the Labour Court was called upon to consider whether the, a care assistant with the respondent nursing home, had made a protected disclosure and, if so whether she was penalised for having made such a protected disclosure.The complainant’s daughter also worked in the nursing home. Some difficulties arose with a named supervisor regarding the complainant’s daughter’s hours. The complainant called a meeting of other care staff in a pub. The issues discussed included reference to the supervisor and her instructions regarding the care of residents. The complainant asserted that she was isolated and supervised in the course of her work after that meeting. She also asserted that she had made telephone calls to HIQA during this period. She was subsequently called to an appraisal meeting where she raised the issue of her daughter’s hours with the respondent also raised concerns regarding the care of the residents and alleged abuse by the supervisor. The complainant was asked to put her concerns in writing which she did. The respondent notified HIQA of the written complaint and initiated an investigation into the matters raised and placed the alleged abuser on leave. The result of the investigation was as follows: there was no evidence to substantiate the allegations made against the supervisor and she was recalled to work. Several allegations of malice had been made against the complainant by other staff members and it was determined that these should be dealt with in a separate investigation. The complainant was therefore suspended on pay pending further investigation. During her suspension and the complainant was requested to complete certain regulatory forms. When she failed to do so over an extended period and despite repeated requests, the complainant was placed on suspension pending a disciplinary investigation.

The court held that a disclosure within the meaning of the act had occurred at the appraisal meeting where the complainant had informed the respondent of the alleged abuse by the supervisor and that she had thereby conveyed information concerning alleged wrongdoings regarding patient care which she reasonably believed were occurring within the nursing home and which had come to attention in connection with her employment.The question then arose whether or not the complainant was penalised for having made this protected disclosure. The court applied its own case law arising under the safety health and welfare at work act, 2005 to the question of causation. The court cited O’Neill v Toni and Guy Blackrock Ltd [2010] ELR 21 and applied the test set out in that case, namely whether the detriment in question was imposed for having committed the protected act: “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 complaint of the commission of protected act must be an operative cause in the sense that “but for” the complainant having committed the protected act here she would not have suffered the detriment. This involves a consideration of the motive are reasons which influence the decision maker in imposing the impugned detriment.”

The court held that the suspension of the complainant following the investigation into allegations did constitute penalisation. The court held that the making of the protected disclosure was an operative reason for placing the complainant on suspension and that the detriment giving rise to the complaint was incurred because of or in retaliation for the disclosure of information related to the alleged abuse and alleged wrongdoings regarding patient care made by the complainant at the appraisal meeting. The court awarded the complainant the sum of €17,500 in compensation.

It is submitted that the campaign of isolation and intimidation to which the Complainant was subjected, together with the decision to place the Complainant under investigation, immediately followed and came in direct response to the Complainant’s complaint in respect of PMDS administration, which was subject to a formal meeting on the 1 February 2019.

It is submitted that, for the reasons outlined above, the Complainant ought to succeed in his claims under the Employment Equality Acts 1998 and the Protected Disclosures Act 2014, as amended.

The Complainant, who is an Industrial Supervisor at the Joinery and Carpentry workshop, has confirmed on this Workplace Relations Complaint form that he made a protected disclosure to the Department on 22nd January, 2019 raising concerns about how the Service implements the Performance Management Development Scheme (hereinafter “PMDS”) in respect of staff.

In particular the Complainant claimed that he had not received a PMDS assessment for approximately 10 years and believed that PMDS assessment ratings which were provided when a staff member of the IPS went for a job interview, were “magically plucked from the sky.” He went on to state that “my suspicion is that a great many successful candidates on Respondent Recruitment Panels have also had their ratings assessed on the same basis as myself.”

The Complainant’s protected disclosure is currently being investigated by the Internal Audit Unit of the Department of Justice and that investigation has not yet been completed or reported upon. The investigation is being carried out entirely confidentially and accordingly, the status of the Complainant’s protected disclosure is not yet known.

However, for the purposes of the Complaint herein it is accepted that the disclosure made by the Complainant to the Department (as set out in his Workplace Relations Complaint form) would qualify as a protected disclosure for the purposes of the 2014 Act and accordingly acknowledges its obligation to address the claim.

While it is the case that the Complainant made his disclosure directly to the Department and in subsequent correspondence requested that the Department ensure that the contents of his disclosure remain at all times confidential, it is the case, that the Complainant has raised concerns about the implementation of PMDS repeatedly with his managers as well as management at all levels within the IPS

Therefore, while it is important to state that Management, who have been identified in the Complainant’s WRC complaint form, namely the retired facility manager; acting facility manager and Chief Officer had no knowledge  that the Complainant had made a protected disclosure to the Department, they are aware of the Complainant’s concerns about how PMDS assessments have been carried out in respect of himself and other colleagues. In other words, while Management were not aware that a protected disclosure had been made by the Complainant, they are aware of the subject matter that would appear to form the basis of the protected disclosure he has made.

Claims of Penalisation

It is submitted that in accordance with Schedule 2, Section 1(9) of the 2014 Act, the Complainant is obliged to notify the Respondent and the WRC in writing of the incidents, or acts, of penalisation which he claims to have experienced as a result of making his protected disclosure.  It is submitted that the Complainant has identified two acts of penalisation on his Complaint form, which he claims occurred to him as a result of making his protected disclosure. The instances of penalisation are as follows:

(a)    That Chief Officer stated “you all know where this is coming from” after giving PMDS forms to the employees l. This comment was intended to intimidate the Complainant and prevent him from raising further issues he may have.

(b)    On 15th February 2019 Chief Officer notified the Complainant that he had been asked to conduct an investigation into an allegation that the Complainant had taken five bags containing unknown material out of the facility. The Complainant believes that this investigation had been ‘fabricated.’

Penalisation Allegation No. 1

On the 4th February 2019 at approximately 9.55am, the Chief Officer was in the Joinery Workshop. The Complainant was present, as well as Work Training Officer. Chief Officer passed out copies of the 2019 PMDS forms to the two men. Chief Officer acknowledges that in the course of handing out the forms he said: “you know where this is coming from.” This was merely a throwaway comment made by Chief Officer in which he was simply stating that the request to fill out these forms had come from Head Office. These comments were not in any way directed at the Complainant and certainly were not intended to cause him any upset, or to in anyway intimidate him, or cause him to desist from raising any further issues which he may wish to raise.

Later that day at approximately 3.30pm the Complainant emailed the Chief Officer and facility manager seeking copies of the previous year’s PMDS ratings. Facility manager replied to the Complainant stating that he did not have any copies of previous PMDS Reports. The following day, 5th February 2019 the Complainant emailed facility manager stating “just to be clear, are you saying there is no paper or email trail as to how 10 years of PMDS ratings generated for me got to HQ? Do you think this anomaly could be replicated for other individuals.”

Accordingly, while it is the Respondent’s strong position that the Chief Officer did not direct any comments at the Complainant, or in any way try to intimidate and upset him, it is respectfully submitted that it is clear from the email content above that the Complainant continued to raise issues to do with PMDS ratings as he felt appropriate. It is also noteworthy that the Complainant did not make any reference to any comments which had been made by the Chief Officer earlier, in his correspondence with the facility’s assistant manager that afternoon.

On 6th February 2019 the facility manager sent an email to all staff as following up on the hardcopy forms that the Chief Officer had handed out two days earlier. His email stated: “Hi All, Please see attached PMDS form and updated end of year review forms electronic version. For those who wish to fill in the form electronically you can forward to your line supervisor. At the end of year assessment your rating will be filled in with your line supervisor. More information is available on IRIS. For anyone unsure of filling in the form please see your line supervisor in the first instance, then Chief Officer or myself.

On 12th February 2019 the Complainant emailed the facility manager setting out a very detailed commentary on PMDS assessments and previous experiences he had with a PMDS assessment which had been carried out by an outside agency. He copied this email to the Human Resources manager. Again, it is submitted that this correspondence confirms that the Complainant continued to raise concerns he had with PMDS and it is clear that the Complainant had not felt dissuaded by management from raising such concerns in any way.

Accordingly, while it is accepted that the Chief Officer did say the comment that the Complainant has attributed to him, it was not in any way directed at the complainant and did not contain the meaning that the Complainant has contended for on this WRC complaint form. Again, for the reasons set out above there was no attempt on the part of management to intimidate the Complainant or place any restriction on his ability to raise issues which were of concern to him.

 Second Allegation of Penalisation

It is the case that all items, or material which are brought into a facility, or taken from a facility must be accounted for. There is a duty on a facility manager, in accordance with the provisions set out in the Rules 2007, to ensure that nothing is brought in or taken out, which would, in the first instance, interfere with safety and security or more generally, interfere with the good administration and management. Accordingly, when the facility manager observed the Complainant taking five bags of unidentified material out without permission on 13th February 2019, there was an obligation on him to investigate what had occurred. It is the case that in the summer of 2018 the Complainant had had a telephone conversation with, then facility’s assistant manager about the removal of materials. In the course of that telephone conversation the Complainant was informed that such material could not be removed without the sanction of the facility manager. In response to that telephone conversation - on 16th July 2018 - the Complainant wrote an email to the facility’s assistant manager requesting permission on that occasion to remove multiple bags of waste wood from the workshop. The Complainant was permitted to do so by the facility manager. On 13th of February 2019 the Complainant was observed by facility manager taking a number of bags, containing unknown contents out. As the facility manager was not aware what was in the bags and was also aware that the Complainant did not have permission to remove material from the facility, he asked the Chief Officer to investigate the matter.On 15th February 2019 the Chief Officer wrote to the Complainant as follows: “I have been directed by the [facility manager] to carry out an investigation in to the following: On the afternoon of Wednesday 13/02/2019, you were observed taking a number of bags containing unknown material out.  I wish for you to furnish to me a written report via this office, within 5 working days of receipt of this request.” Accordingly, it is clear from the contents of this email that the Complainant was being asked to provide, in writing, an explanation for what had happened.  Later that day the Complainant replied to the Chief Officer suggesting that the request was a “rather sinister turn of events given recent correspondences that facility’s assistant manageris aware of. The timing of the investigation is also well orchestrated given that I am finishing for a half day prior to the weekend.

The Complainant completed his email by asking the Chief Officer to address a series of questions about the incident, namely who had made the allegation; what had been observed. He also sought CCTV footage of the incident. The email was also copied to the following senior personnel within the Service: facility’s assistant manager, facility manager and Director of Personnel, Director General of the Service. The Complainant responded to Chief Officer’s request in detail on 25th February. In his reply he confirmed that he had removed 5 bags of cut-up waste pallets through the inner main gate of the facility. Having set out the reasons why he had removed the material the Complainant concluded his report by saying: “I hope this operational report is to your satisfaction.” 

On the 1st March 2019 the Complainant wrote to the facility manager asking “has there been a conclusion to the investigation ordered by [facility’s assistant manager]?”

Later that day facility manager replied in detail as follows: “Further to your memo below please note the following: There is a difference between a request for an operational report on an incident or issue, which every officer is obliged to give on request as per the current statutory regulations in place, and an investigation. As I explained to the local branch officers who made representation on your behalf that there is no investigation taking place. I assume that they have relayed this to you following their meeting with me. An investigation would only take place if having receive a report requested on an incident there is a perceived wrong that requires further inquiry which if occurring would necessitate that the officer is formally warned in writing that an investigation is taking place. That does not apply in this case. Your report, however does highlight the need to tighten up on our practices with regard to the disposal of not just perceived waste timber but the disposal of all items that are required to pass through the main gate for which an audit trial is required. The onus is on all staff but particularly supervisory staff who have the responsibility for an area to ensure that an accurate record is maintained of all items including waste timber that leave their area. This requirement is to protect everyone concerned and not expose any individual to allegations of impropriety or actions promoting self-interest. There is a requirement to put in place a simple SOP to cover the disposal of any item including waste timber in this case. I have instructed Chief Officer [surname] to draft such a document for consideration. I would hope that you and your colleagues on the work training side most affected by this would also lend him your experience and offer any support or suggestions that you see fit to incorporate into his draft. This final SOP will also apply to the education area. I trust that this clarifies the matter.

It is clear from the contents of the facility manager’s email that management were looking for an explanation as to why the Complainant had been taking bags of material out. It is also clear that management accepted the explanation he had provided and were happy that the matter could be left at that. However, the facility manager’s email is noteworthy in that he stated that in accordance with good management practice it would be helpful to put a documented procedure in place to deal with incidents such as this one, in a bid to try and ensure that such issues did not arise in the future. Again, in a clear indication that the facility manager fully accepted the Complainant’s explanation as to what had happened, the Complainant was asked, on the basis of his experience, if he would be willing to contribute to the establishment of such a procedure. Again, for the reasons set out above, it is submitted that the Complainant was not penalised as alleged. 

The Law

As stated above the Complainant’s protected disclosure is currently being investigated by the Internal Audit Unit of the Department of Justice and that investigation remains confidential. However, as set out above, under Section 5(8) of the Protected Disclosures Act 2014: (8) 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.” Accordingly,the Respondent accepts that a protected disclosure has been made for the purposes of this WRC complaint.

It is, however, noteworthy, that the Services Protected Disclosure’s policy at Section 12, makes a distinction between matters which qualify as a protected disclosure and other matters which more properly should be considered under the IPS’ Grievance Policy, or its Anti Bullying and Harassment policy.

12.1 The Act is intended to deal with disclosures of relevant wrongdoings. This normally involves wrongdoings that are likely to cause harm to an organisation itself or to the public at large, as opposed to personal complaints.

The policy goes on to say:

12.3 The Procedures are not intended to act as a substitute for normal day to day operational reporting or other internal employment procedures. Personal complaints should generally be dealt with under the Service’s Grievance or Dignity at Work procedures.

12.4 For example, a worker may complain that there is a breach of the worker’s own terms and conditions. That type of complaint should generally be dealt with under the Respondent's Grievance procedure. Alternatively, a worker may claim that she/he is being bullied or harassed by a colleague. That type of complaint should generally be dealt with under the Respondent’s Dignity at Work procedure. If a complaint is made of penalisation contrary to the Act, such complaint will be dealt with under the Procedures so as to ensure that the obligation to protect the identity of the discloser (as set out in paragraph 10.1 above) is complied with.

The leading decision on penalisation arising from the making of a protected disclosure remains that of the Labour Court in Aidan & Henrietta McGrath Partnership v Monaghan PDD 2/2016. Addressing the meaning of Section 12(1) of the 2014 Act. The Labour Court re-iterated that: “The Court must first establish that a protected disclosure has been made before it can examine whether a penalisation within the meaning of the Act has occurred. The Labour Court then went on to say that the Complainant’s claim of penalisation made under Section 12 of the 2014 Act must be directly connected to a protected disclosure which had been made by the Complainant.  Essentially the penalisation claimed must amount to a “retaliatory act” in response to the disclosure made. It said: The Act is a new piece of legislation with limited case law, however, the provisions regarding penalisation are broadly similar to those provided in the Safety Health and Welfare Act, 2005. As this Court pointed out in O’Neill v Toni and Guy Blackrock Limited[2010] E.L.R. 21, it is clear from the language of Section 27 of the 2005 Act that in order to make out a complaint of penalisation it is necessary for a complainant to establish that the detriment of which he or she complains was imposed“for”having committed one of the acts protected by Section 27(3) of the 2005 Act. 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.”

It is clear, from the Labour Court’s reasoning above, that the Complainant can only succeed in his claim before the WRC if he can show that he was penalised as a direct response to the fact that he had made a protected disclosure.

While it is the Respondent’s position that the Complainant was not penalised in anyway, it remains the case that the facility manager; facility’s assistant manager and the Chief Officer had no knowledge of the fact that the Applicant had made a Protected Disclosure. Accordingly, at law, the issue of a retaliatory act cannot arise as they could not have reacted to something that they were not aware of.

Therefore, for the reasons set out above, it is strongly submitted that the Complainant, herein, was not in any way penalised for making a protected disclosure.

Protected Disclosure Reporting /Investigation

I find that the Complainant made a disclosure to the Service rather than to the management at the site that he was based in.

I find that this disclosure was made on a confidential basis.

I find that the local management where the Complainant is employed were not made aware of this disclosure.

I note that they have taken the view that this is a protected disclosure until such a time that it may be disproven.

I note that the Service is conducting an investigation into this alleged protected disclosure.

I note that the local management are unaware of the content of the disclosure.

I note that it is the Complainant’s position that he has been penalised by his local management for making that protected disclosure.

I note that the Respondent has rejected this complaint.

I find that the Complainant made a disclosure directly to the Service and not to the site management where he is based.

I find that he made a confidential disclosure to the Service.

I note that the Service is currently conducting an investigation into that disclosure.

I find that it is premature for the Complainant to have made a complaint to the Workplace Relations Commission before the outcome of that investigation.

Allegation of retaliatory penalisation.

I find that penalisationcan only be established if conduct or behaviour of the Respondent is on foot of the Complainant making a protected disclosure and as a consequence of that disclosure the Respondent retaliates only because the Complainant made the protected disclosure.

I note that the Complainant has confirmed that he made the disclosure to the Service, not to the site management where he is employed.

I note that the local management gave evidence that they were unaware that he had made a disclosure.

I find that under those circumstances the site management could not have penalised the Complainant as they did not know that he had made the disclosure.

Penalisation can only take place where the Respondent retaliated against the Complainant for making the disclosure.

I find that they did not know about the disclosure and so the actions that they are accused of could not be as a result of the disclosure or in retaliation for the making of that disclosure.

Therefore, I find that the Complainant’s complaint is not well founded.

Penalisation for making a protected disclosure