ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00021828
Parties:
| Complainant | Respondent |
Anonymised Parties | Employee | County Council |
Complaints:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00028549-001 | 20/05/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under Schedule 2 of the Protected Disclosures Act, 2014 | CA-00028549-002 | 20/05/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003 | CA-00028549-003 | 20/05/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00028549-004 | 20/05/2019 |
Date of Adjudication Hearing: 04/12/2019
Workplace Relations Commission Adjudication Officer: Michael Ramsey
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015following 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 seeking adjudication by the Workplace Relations Commission under Section 6 of the Payment of Wages Act, 1991 and has submitted that following his demotion his salary is significantly less and he has lost out on pension increments (CA-00028549-001). The Complainant is seeking adjudication by the Workplace Relations Commission under Schedule 2 of the Protected Disclosures Act, 2014 and has submitted that arising from his protected disclosure he was demoted and has suffered significant detriment and penalisation (CA-00028549-002). The Complaint is seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003 and has submitted that the Respondent has contravened the legal position in relation to the number of successive fixed term contracts that can be issued to the Complainant (CA-00028549-003) The Complaint is seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 and has submitted that he was not notified in writing of a change of terms of his employment (CA-00028549-004) |
Summary of Complainant’s Case:
The Complainant commenced employment with the Respondent on the 4th October 1979 as a clerical officer. The Complainant commenced in his current post as a Grade 6 officer on the 9th July 2001. In 2013, the Complainant entered a promotional competition for a Grade 7 acting position. The Complainant was successful in this competition and assumed this role within a particular section that dealt with members of the travelling community on or about the 30th September 2013. It is submitted that this role was very challenging and due to the Complainant’s successful performance this position was renewed every three or six months. The Complainant entered four permanent Grade 7 promotion competitions between 2013 and 2018 and was unsuccessful in all these competitions and it is noted that no candidate from these Grade 7 panels were appointed to the Complainants post. It is submitted that it is clear from this that the Respondents intention was to leave the Complainant in his acting post until his retirement. Previous to the Complainant’s assumption of the role and duties as the Grade 7 officer, the post was always filled by a permanent Grade 7. In the course of 2017 and 2018 the Complainant was subjected to harassment and intimidation in the course of his role. In September 20I8 the Complainant was subjected to a number of serious occurrences of harassment and intimidation at his family home and in other public places. It is submitted that the intent of the people who harassed and intimidated him was for the purposes of making decisions in their favour in the course of his employment with the Respondent. The Complainant decided to inform the Respondent about these incidents as he believed he had a duty to protect himself, his family and his colleagues. He reported this incident to his Line Manager and to Human Resources and rather than matters being dealt with appropriately his position in work deteriorated. Shortly thereafter, the Complainant went on a short period of sick leave due to work related stress and anxiety caused by these events. The Complainant submitted that by reporting these aforementioned matters to the Respondent he was making a Protected Disclosure in accordance with the provisions of the Protected Disclosure Act 2014. The Complainant submitted that the relevant information disclosed falls within at least two definitions of relevant wrongdoings namely that an offence has been, is being or is likely to be committed and that the health or safety of any individual has been or is likely to be damaged. Following these disclosures the Complainant was called to a meeting with Human Resources on or about 16th October 2018 wherein he was advised that he would be removed from his current role and returned to his Grade 6 position and reassigned to a different section in the office in a different location. Furthermore, the Complainant would remain on the payroll as Grade 7 officer until November. The Complainant expressed dissatisfaction with the proposal that he would be both demoted and moved. He raised that it would impact his pay and his pension and that as far as he was concerned, he was a Grade 7 officer and that he was entitled to the benefits of a contact of indefinite duration arising from the long series of fixed term contracts. The Complainant surmised at the conclusion of this meeting that if had not reported the aforementioned incidents of harassment and intimidation he would have been left in the Grade 7 officer role. The Complainant was informed at a meeting in early November 2018 that he would continue to work in his current location as a Grade 6 officer. The Complainant informed Human Resources that he believed he had a contract of indefinite duration. The Complainant was unaware that in or about the same time the Human Resources Department of the Respondent had approached his union representative to offer compensation in lieu of the Grade 7 position. The Complainant was informed by email dated 21st November 2018 that he was being transferred as a Grade 6 Officer and he responded that he had not sought a transfer and he had been a Grade 7 officer on a fixed term contract since October 2013. The Complainant submitted that in relation to the disclosures made, it was an extraordinary position to suggest that the making of such information is not a protected disclosure unless it is made in a particular manner in accordance with some provision. It is submitted that the said Act does not require any particular methodology to be adopted to make a disclosure a protected disclosure. The mere fact that the Complainant did not make his report in a particular manner or to a particular person does not in any way minimise his entitlements pursuant to the Act. Furthermore, by the Complainant advising his Line Manager and HR management of these events he was advising the Respondent and accordingly the Respondent cannot hide behind some protocol or procedure. The Complainant submitted that his demotion and transfer arose solely by reason of him advising the Respondent of the harassment and abuse he had suffered and therefore he must succeed in relation to this particular claim pursuant to the Protected Disclosures Act, 2014. The Complainant submitted that in circumstances where he was in a Grade 7 role for approximately five years, whether pursuant to a series of fixed term contracts of 3 months or 6 months, that he became entitled to a contract of indefinite duration and accordingly the reduction in his pay was an unlawful deduction of his contractually entitled remuneration. The Complainant submitted that he had not been provided with provided with the appropriate terms and conditions of employment as required by the Terms of Employment (Information) Act, 1994. These Complaints were received by the Workplace Relations Commission on the 20th May 2019. |
Summary of Respondent’s Case:
The Respondent accepts the timeline in relation to the Complainant’s employment. However, the Respondent outlined a number of preliminary matters in the circumstances of this matter. Firstly, the Complainant was at all times employed in his substantive post as a Senior Staff Officer at grade VI, on a permanent basis. Secondly, the Complainant was never a fixed-term employee. Thirdly, The Complainant has been employed by the Respondent or within the broader public sector since 1979, considerably predating the obligations of the 1994 Act and he never requested a written statement of terms and conditions of employment. Fourthly, The Complainant only suffered a reduction in pay when he was restored to his substantive post and solely because he returned to his substantive post. Fifthly, No protected disclosure has ever been made and no act of penalisation has ever arisen and sixthly no claim for regularisation into the acting post was made at any relevant time. The Respondent submitted that the Complainant is a permanent employee whose substantive post is that of a Senior Staff Officer (at Grade VI). The Complainant then acted up on an interim basis to a more senior post (Acting Administrative Officer at Grade VII) for a time before being restored to his substantive grade. It is submitted that by returning the Complainant to his substantive post from the acting up post cannot and does not give rise to any valid claims. The Respondent submitted that no public sector employee has a right or entitlement to an acting up allowance once they are no longer acting up. There is also no practice across any local authority of paying compensation to employees who move out of acting posts and who revert to their substantive posts. Following the return of the Complainant to his substantive role, and given the particular circumstances, the Respondent engaged with the Complainant's representative to address the economic impact of his loss of his acting up allowance and were prepared to consider applying the framework calculation to his circumstances even though the framework process was closed and the Complainant was not eligible for it. The Respondent made an ad hoc offer on this basis to the Complainant through his representative but the Complainant did not respond. The Respondent submitted that the Complainant was aware that at all times he was never promoted to Grade 7 but was appointed to a higher grade in an acting or a temporary basis. Accordingly, the Complainant had and has no statutory or contractual entitlements to the remuneration wages of a Grade 7 role. The higher pay the Complainant received while he was in the Grade VII role was an acting up allowance which was dependant on the Complainant retaining that acting up position. Once the period of acting ceased, any entitlement to an acting up allowance ceased. The Respondent submitted that the aforementioned incidents of harassment and intimidation as outlined by the Complainant do not amount to protected disclosures under the 2014 Act. In that regard, the Complainant reported the issues under the Respondent's Health & Safety Framework and not their Protected Disclosure Policy. Furthermore, none of the complaints relate to acts or omissions of the employer or any of its officers or employees and make no allegations of any nature that the Respondent or its personnel have engaged in conduct that meets any of "relevant wrongdoings". The complaints made by the Complainant relate to the conduct of third parties. The Respondent submitted that the Complainant never indicated he wanted these incidents to be treated as protected disclosures. The Respondent submitted that it is denied that the removal of the Complainant from his acting role was retaliatory for raising such alleged protected disclosures. The response of the Respondent to remove the Complainant from an acting role which he said was causing him exposure to intimidation was entirely proportionate and appropriate in discharge of the Respondent's duty of care owed to the Complainant. The Respondent submitted that the Complainant has at all material times been employed by the Respondent on a permanent contract of employment. The Complainant, as a permanent employee, was temporarily assigned to act in a higher grade as an Acting Administrative Officer at Grade 7 and therefore the Complainant is not a fixed-term worker and cannot avail of the protections of the 2003 Act. The Respondent submitted that the Complainant has been an employee since 1980 and has never sought a written statement of terms and conditions of employment. This is an absolute requirement under Section 6 of the 1994 Act. The Complainant's terms and conditions are regulated by public sector national agreements and collective bargaining within local authority employers. Accordingly, the Respondent submitted that it has not acted in contravention of the 1994 Act. The Respondent ultimately submitted in consideration of the above, the Complainant’s claims are without merit and must fail.
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Findings and Conclusions:
I have carefully listened to the evidence tendered and submissions made in the course of this hearing by both parties. In the particular circumstances of this case, it would be appropriate to firstly determine if the incidents that the Complainant reported to the Respondent can be regarded as protected disclosures as this is at the kernel of the various complaints. Complaint CA-00028549-002 In relation to this Complaint, Section 5 of the Act of 2014 provided that For the purposes of this Act “protected disclosure” means, subject to subsection (6) and sections 17 and 18, a disclosure of relevant information (whether before or after the date of the passing of this Act) made by a worker in the manner specified in section 6, 7, 8, 9 or 10.
(2) For the purposes of this Act information is “relevant information” if— (a) in the reasonable belief of the worker, it tends to show one or more relevant wrongdoings, and (b) it came to the attention of the worker in connection with the worker’s employment. (3) The following matters are relevant wrongdoings for the purposes of this Act— (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 or services, (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 funds 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 matter falling within any of the preceding paragraphs has been, is being or is likely to be concealed or destroyed. The Complainant relied upon the aforementioned incidents as coming within the definition of relevant wrongdoings specifically 3(a) and (d). However, I accept the incidents reported related to the conduct and behaviour of third parties and none of the matters complained of were acts or omissions of the Respondent its servants or agents. The Respondents Protected Disclosure Policy (April 2018) provides at 2.1.1 “that the purpose of the policy is to encourage employees/workers to report internally any concerns they may have regarding potential wrongdoings in the workplace.” Further at, 1.5 it states inter alia "there is an important distinction to be made between raising a concern regarding relevant wrongdoings as defined in the Protected Disclosures Act 2014 covered by this policy and other issues that may be raised relating to the normal business of the Council which do not fall under this policy" and at 1.6 it states “.. that concerns in relation to day to day operational matters will..and be dealt with accordingly ..eg. Health and Safety matters should be addressed through the procedures established in the Respondent’s Health and Safety Management system. In the particular circumstances of this case, the Complainant reported these matters to the Respondent under the Health & Safety Framework and not the aforementioned Protected Disclosure policy. In that regard I note the Health and Safety Incident reports and the Violent Incident Summary Report from the Complainant. In Everett Financial Management Ltd v Murrell EAT/552/02, 18 December 2002. In this case the respondent was employed as an equities dealer by the appellant. He claimed that he had been constructively dismissed by reason of his having made a protected disclosure. He asserted that he had made a disclosure in 2000 when he and 18 of his colleagues became concerned about a particular practice that they were required to carry out and signed a petition seeking assurances from the appellant’s directors that they were not engaged in an activity that was unlawful or that could be construed as unlawful. On appeal the English EAT agreed held that the petition did not disclose any information. It concluded that simply raising and expressing concerns and seeking assurances that there had not been a breach of a legal obligation did not amount to a protected disclosure under the Act. In Eiger Securities LLP v Korshunova [2017] ICR 561 illustrates the fact the Adjudication Officer must be satisfied that the information purportedly amounting to a protected disclosure actually discloses an alleged wrongdoing. In that decision the EAT said:
“The identification of the obligation does not have to be detailed or precise, but it must be more than a belief that certain actions are wrong. Actions may be considered to be wrong because they are immoral, undesirable or in breach of guidance without being in breach of a legal obligation. However, in my judgment the ET failed to decide whether and if so what legal obligation the claimant believed to have been breached. The decision of the ET as to the nature of the legal obligation the claimant believed to have been breached is a necessary precursor to the decision as to the reasonableness of the claimant’s belief that a legal obligation has not been complied with”.
The Protected Disclosures Act 2014 provides protection for the employee who is a whistleblower against dismissal and penalisation. Penalisation is very broadly defined in section 3 of the 2014 Act and includes any act or omission that affects a worker to the worker’s detriment and provides , 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 Monaghan v Aidan and Henrietta Hayes partnership (2017) ELR 8 the Labour Court has approached the issue of penalisation under the 2014 Act by applying what might be described as a "but for" test, requiring a Complainant to demonstrate that the detriment giving rise to the complaint must have occurred because of, or in retaliation for, the complainant having committed a protected act. In that case the Labour Court noted that the provisions regarding penalisation under the 2014 Act were "broadly similar" to those set out in the Safety, Health and Welfare at Work Act, 2005 and referred to its own decision in O'Neill v Toni and Gur Blackrock Ltd ([201O] ELR 1 wherein it 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 suggested that where there is more than one casual 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 treatment”
In relation to this Complaint, I have to first establish if the Complainant made a protected disclosure within the meaning of the 2014 Act before examining whether penalization has occurred.
Upon consideration of the relevant legislation and the aforementioned case law, I find that the aforementioned traumatic incidents endured by the Complainant were not committed by the Respondent or its servants or agents but by a third party who were effectively end users outside of the workplace. I have not been persuaded nor has any evidence been adduced or submitted that satisfies me that protected disclosures can be made in relation to actions by a third party/end user outside of the workplace as in the circumstances of this particular case. Furthermore, I find that the Complainant had raised and expressed concerns in relation to the aforementioned incidents, as per the Everett case above, and accordingly they did not amount to protected disclosures. In support of this finding it is noted that the Complainant reported these matters under the Health and Safety framework and never availed of the Respondents Protected Disclosure policy. For the avoidance of doubt, I find that the incidents reported by the Complainant did not amount to protected acts within the meaning of the Protected Disclosures Act, 2014. Accordingly, as these matters did not amount to protected acts I do not have to consider the aspect of penalization under the 2014 Act. I find that this Complaint fails.
Complaint CA-00028549-001 In relation to this Complaint and without prejudice to the foregoing Complaint, which I have already stated fails, the Complainant submitted that the Respondent had effectively made an unlawful deduction from his wages by virtue of him being restored to his Grade 6 position. The Complainant submitted he was transferred and demoted solely because he had advised the Respondent of the harassment and abuse he had received from “end users”. In the particular circumstances of this complaint, the Complainant commenced in his Grade 6 role on the 9th July 2001. The Complainant took up the role of acting Grade 7 role on the 7th October 2013. The Complainant continued in this role until the 6th January 2019. At the time of the Complainant taking up this Grade 7 role, the Complainant accepts there was a public service promotional embargo and there were no permanent promotions and accordingly staff were put on renewable temporary contracts to fill designated vacancies. Accordingly, certain arrangements for long-term actors were addressed as part of the public service agreements, particularly following the recruitment moratorium. An output of the public service agreements, a compensatory framework was agreed for the local government sector to address the resolution of long term acting appointments in the local authorities which had arisen as a consequence of the recruitment moratorium. This framework provided for competitive recruitment processes that were confined to the individual local authorities to resolve long-term acting up, with a compensatory element to be applied on a one-off basis and only in the very specific circumstances where a candidate reverted to his or her substantive post having been unsuccessful in a confined competition. In these circumstances only, compensation was offered, effectively, at a calculation of 1.5 times the employee's annual loss. These confined competitions were held in late 2015 and early 2016. At the conclusion of that process and the resolution of the legacy long-term acting issue the framework became defunct as there was no basis for a continuation of the compensatory framework beyond the conclusion of these competitions. In the particular circumstances of this case, I find that the Complainant has at all material times been employed by the Respondent on a permanent contact of employment and his substantive post is that of Grade 6 officer. I find that the Complainant was acting up on an interim basis from the 7th April 2014 until the 6th January 2019 and the higher pay the Complainant received in his grade 7 role was an acting up allowance which was dependant upon the Complainant retaining that acting up position. I note that the Respondent indicated that given the circumstances that had given rise to the Complainant's reversion to his substantive post they considered applying the aforementioned framework calculation and made an ad hoc offer but the Complainant which responded to such an offer. Although I find that this Complaint fails but in light of the very difficult circumstances experienced by the Complainant I find that the Respondent should renew the aforementioned ad hoc offer based on the compensatory framework to the Complainant. Complaint CA-00028549-003 In relation to this Complaint, the Complainant acknowledges, in the specific details of the complaint form, “that underneath all these “fixed terms contracts” he had a permanent grade 6 contract” In Louth County Council -v- Kelly FTD 1320, the Labour Court held: Accordingly the Court finds that the Complainant was at all times a permanent employee of the Respondent Council. In order to come within the ambit of the [2003] Act a Complainant must have the status of a fixed term worker. The Court interprets that to mean that a Complainant 's employment must be coterminous with the expiry of a fixed term or fixed purpose contract of employment. A Complainant who reverts to their substantive role and whose employment continues at the end of a fixed term does not enjoy the protection of the Act.In this case the Complainant was at no point a fixed term worker within the meaning of the Act. At all times he held a contract of indefinite duration as an Executive Engineer. At times he applied for and was appointed to temporary assignments and was remunerated accordingly. However at all times he continued to hold a contract of indefinite duration and his employment status was never at risk while on temporary assignment. The Complainant has at all material times been employed by the Respondent on a permanent contact of employment, is not a fixed term worker and therefore cannot avail of the protections of this Act. Accordingly, this Complaint fails.
Complaint CA-00028549-004 In relation to this Complaint, Section 3 of the Terms of Employment (Information) Act, 1994 provides: 3.—(1) An employer shall, not later than 2 months after the commencement of an employee’s employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee’s employment.
However, the Complainant commenced employment in 1979 with the Respondent, so Section 6 of the Notice Terms of Employment (information) Act 1994 provides: 6.—(1) Where, before the commencement of this Act, an employee has entered into a contract of employment with an employer, then, the employer shall, if so requested by the employee, furnish to the employee a statement under section 3 and, if so requested by the employee, there shall be added to the statement the particulars specified in section 4.
(2) An employer shall, within 2 months after the employer has been required to do so under subsection (1) furnish to the employee concerned a written statement in accordance with that subsection
Upon consideration of the evidence, I find that the Complainant did not request a written statemen of his terms and conditions of employment and accordingly this complaint fails.
In conclusion, I accept that the Respondent acted appropriately by removing the Complainant from the position wherein he described being subject to intimidation and harassment and they acted in the best interests of the Complainant in safeguarding his well being. In the particular circumstances of this case, I fully accept this has been a very stressful and difficult time for the Complainant and his family. Further, the Respondent confirmed at the hearing of this matter that the Complainant remains a highly valued employee. |
Decision:
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.
I find that the Complaint (CA-00028549-001) made under Section 6 of the Payment of Wages Act, 1991 fails but find that the Respondent should renew the ad hoc offer based on the compensatory framework to the Complainant. I find that the Complaint (CA-00028549-002) made under Schedule 2 of the of the Protected Disclosures Act, 2014, fails. I find that the Complaint (CA-00028549-003) made under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003 fails. I find that the Complaint (CA-00028549-004) made under section 7 of the Terms of Employment (Information) Act, 1994fails. |
Dated:August 14th 2020
Workplace Relations Commission Adjudication Officer: Michael Ramsey
Key Words:
Protected Disclosure |