Complainant

Respondent

Anonymised Parties

A Telecoms Senior Professional

A Utility Company

Representatives

Self 

Barry Walsh, Fieldfisher

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     Section 6(1) of the Prevention of Corruption (Amendment) Act 2010

CA-00034796-001

24/02/2020

The complainant is an engineer and he joined the respondent organisation in October 2006.   His job is now that of “senior lead professional” and he said that he manages the largest budget in the organisation. His annual salary is €70,000.

Based on the complainant’s written submissions, evidence of his meeting with investigators from EY on May 28th 2019 and his evidence at the hearing on October 2nd 2020, this is my interpretation of the background to his complaint:

In May 2012, when they were working on a contract renewal document between the respondent and another company, the complainant’s manager, “TL,” asked him to send the draft contract to his (TL’s) wife to review and format. A few days later, the complainant and TL had a meeting about the contract and the complainant said that, because of changes TL had made to the document, he got the impression that he had done the re-formatting himself.

TL asked the complainant to request an invoice from an agency that supplies contractors to the respondent, so that his wife could be paid. The complainant phoned the agency manager, who didn’t know how much the invoice was for. The complainant didn’t want to get involved and he told the agency manager that he would ask TL to phone him, which he did. Later, TL forwarded him an invoice for €270 from the agency and he asked the complainant to raise a purchase requisition order (PR) so that it could be paid. The complainant said that he had a team meeting with his two colleagues and he told them that he “wasn’t comfortable” about TL’s request and that he wouldn’t raise the PR.

A few days later, one of the complainant’s colleagues came to his desk with a PR document and asked him how much the invoice for TL’s wife was for. The complainant said that he didn’t want to be involved and his colleague said that he just wanted to know how much the invoice was for.   The complainant said that he opened the invoice on his computer and walked away. He said that, after that, TL didn’t ask him to raise the PR.

In 2013, the complainant’s manager moved to another department, but he returned in June 2017, first as a manager and then as a team leader. In 2018 and 2019, the complainant received negative performance reviews. His complaint is that he has been victimised because he refused to raise the PR in 2012, for “calling out” his department manager, “DM,” on his investigation into the issue, and for having initiated the whistleblowing process.

Section 41 of the Workplace Relations Act 2015 provides that a complaint cannot be entertained if it is submitted to the WRC “after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.” As this complaint was submitted to the WRC on February 24th 2020, the respondent’s position is that it must be limited to the period from August 24th 2019 to February 24th 2020. The complainant has not indicated that there was any reasonable cause that prevented him from submitting his complaint earlier than February 24th 2020. The outcome of the complainant’s 2018 performance review was finalised on December 17th 2018 and the respondent submits that this is statute barred and that the WRC has no jurisdiction to hear this part of his claim.   The only event that the complainant can refer to that occurred during the cognizable period is his 2019 annual review, which he did not appeal.

In January 2019, the complainant appealed the outcome of his December 2018 performance review to the company’s HR director. When she did not resolve the matter to his satisfaction, in March 2019, he requested that the matter be investigated under the Whistleblowing Policy. A report was produced on January 13th 2020, following which, around five weeks later, the complainant submitted this complaint to the WRC.

Having considered this matter, I find that the penalisation that the complainant alleges occurred in December 2019, that is, the finding that his performance merited a “needs improvement” rating, is a continuation of the penalisation that he alleges occurred in 2018. It is my view that I have jurisdiction to hear the entirety of his complaint, comprising the events from early 2018 until the outcome of the respondent’s whistleblowing investigation in January 2020.

The normal protocol at this section of a decision document is that the adjudicator summarises the complainant’s case as succinctly as possible, ensuring that the relevant facts are recorded. In the case under consideration here, I have decided not to summarise the complainant’s position, but to record in full the information he submitted in writing and the points he made in his evidence at the hearing. I have done this to reassure the complainant that I have considered every aspect of his case and that none of the details have been overlooked.

Outcomes from the Complainant’s Performance Ratings 2013 – 2019

A significant element of the complaint I have been asked to adjudicate on relates to the complainant’s argument that he was penalised by his managers in his performance reviews in 2018 and 2019. As a reference point, I wish to record here the history of the complainant’s performance ratings since 2013.

Targets and Objectives

Competencies

Overall

Rating

2019

Needs improvement

Needs improvement

Needs improvement

2

2018

Needs improvement

Needs improvement

Needs improvement

2

2017

Good

Needs improvement

Good

3

2016

Good

Needs improvement

Good

3

2015

Good

Good

Good

3

2014

N/A

N/A

Good

3

2013

N/A

N/A

Good

3

Chronology Leading to this Complaint

In his written submission prior to the WRC hearing, the complainant said that, in his year-end reviews in 2018, TL made negative comments about his performance, identifying shortfalls in his communication skills. He claims that the comments were not shared with him before being recorded on the review document and he only found out at the review meeting on October 25th 2018. Before TL was part of his line management, the complainant said that no issues were raised about his capabilities.

Since becoming team leader, the complainant said that TL “started updating negative reviews on my soft skills including my communication skills in my quarterly performance review reports without sharing the reports or these concerns with me at any time at or during our quarterly performance review meetings.”   In October 2018, when he discovered that TL was marking down his quarterly performance reviews without his knowledge, the complainant said that he told DM that in 2012, he refused to raise a PR for TL’s wife. He said that TL’s comments about his performance were “a manifestation of this” and he asked for his remarks to be looked at in this context. In December 2018, DM told the complainant that he investigated his complaint and he informed him that in 2012, when he refused to raise the PR, it was raised by one of his colleagues. DM told the complainant that there was nothing untoward about this. There is no record of the December 2018 investigation. The complainant was also informed that his performance review at the end of 2018 would record that he had not met his targets because his communication skills were less than satisfactory. In December 2017, he received around €4,000 as a performance-related bonus, but he received no bonus in December 2018 or 2019. The complainant said that his 2018 “needs improvement” rating also meant that later in 2019, he was not considered for a promotion when a vacancy became available.

On December 31st 2018, the complainant brought his concerns to the attention of the HR director who reviewed the information and informed the complainant that she made no adverse conclusions. On March 21st 2019, the complainant escalated his complaint to the CEO. A copy of his email to the CEO was included with his submission at the hearing. This is his communication to the CEO:

“Dear (name of CEO)

“(TL) while my manager …requested that I raise a purchase request for his wife. I was not comfortable with his request and did not raise the PR. At the time I informed my colleagues … that I would not be raising the PR.

“(DM) recently confirmed …that the PR for (TL’s) wife was subsequently raised and the purchase order placed. (DM) indicated that (TL) has no recollection of the purchase request.

“I am forwarding my correspondence with (the HR director) on the matter and (the HR director) has echoed (DM’s) findings that there was ‘nothing untoward or consequential.’ (DM) did not interview me as part of his investigation and the only instance (DM) met with me was when I initially raised (TL’s) request of the PR with him.

“I believe an independent investigation is necessary before key people involved leave the company through retirement or otherwise.

“(TL) has in the past couple of years re-joined (the complainant’s department) first as manager and now team leader. During his absence I have not had any negative performance reviews. Early in last year’s review process …(TL) entered negative comments on my communication competency in my review document after our review meeting. I only found out about these comments towards the end of the year. (TL) did not share these comments with me prior to or during the review meeting.   (TL) at the end of last year’s review process, forwarded a version of my review documents, with more negative comments on my communication, again which had not been discussed at any of the over five and a half hours of end of year review meetings I had with (TL) and (DM).

“Regards…”

The complainant said that his 2019 performance review is “a continuation of my victimisation from the 2018 reviews.” He complains that TL and DM “made some blatant allegations regarding my professional performance in 2019 that I did not meet certain targets which I can refute with evidence.” He said that he raised the effect of his 2018 review with the HR director, but she upheld the outcome of this review without a formal investigation into what he referred to as “the underlying transaction and its consequences.”

With the assistance of a forensics team from the consultancy firm, EY, the company’s head of internal audit carried out an investigation into the complainant’s whistleblowing allegation. Along with TL, DM, the colleague who raised the PR and the HR director, the complainant was interviewed by two EY consultants in May 2019.

On January 8th 2020, the complainant asked the CEO to issue the report of the investigation into his complaint. He said that he indicated to the CEO that he thought his 2019 review was unfair, because he claimed that he met his targets and had documented proof of having done so. DM had commented on his lack of people skills and communications skills. The complainant said that he challenged DM about his criticisms of his communications skills and while he “rolled back” on his comments, his review remained marked down.

On January 13th 2020, the report on the whistleblowing investigation was published. Documents from 2012 were not available for inspection by the authors. Based on the five interviews conducted, the report found nothing to indicate that the complainant’s performance reviews or appeals were affected by the 2012 incident. There was no mention of his concerns about his 2018 review and the fact that meetings during October 2018 went on for five hours, instead of the recommended one hour. The complainant said that an issue he raised about jobs being filled without being advertised was not mentioned in the report. On foot of the January 2020 report, the CEO said that the matter was closed and on February 24th, the complainant referred this complaint to the WRC.

The Complainant’s Response to the Whistleblowing Report

The complainant outlined a number of concerns that he has with the report into his whistleblowing complaint:

1. The report states, “Due to a lack of available in-house and contracted resources, the person was engaged to perform the proof reading and review exercise.” It does not mention how the investigation concluded that there was a lack of in-house and contracted resources.

2. The reports states, “The wife of the Team Manager was engaged to perform a proof-reading and review exercise.” It does not mention how the investigation concluded that the wife of the Team Manager was engaged and who engaged her.

3. The report states, “We understand that she was paid for her work.” There is no mention of how the investigation arrived at the conclusion that it was “her work.” The report provides no evidence that TL’s wife carried out a proof-reading and re-formatting exercise on the draft contract.

4. The report states, “It is important to note that the value of the 2012 transaction was €200 - €300.” The complainant said that this implies that the value of the contract makes raising the purchase order justifiable.

5. The report noted that the Team Manager arranged for his wife to be contracted through the contracting company. The complainant argued that a person cannot be contracted after a piece of work has been done and that the report seeks to give the impression that she was contracted before the work was completed.

6. The reports finds that “no relevant documents were available for inspection to confirm the sequence of events,” but it does not identify what documents were sought or any evidence of a contract being in place with TL’s wife or that the assignment was a conflict of interest for TL.   The complainant said that, while he provided details of the systems where information could be found, the reports makes no reference to efforts to source the documents.

7. The complainant said that the report “introduces a level of obfuscation” and is unclear about whether the draft document was sent through the contracting company to TL’s wife, which would imply that a contract was in place. As he did not send the document to the contracting company, the complainant said that the report implies another possibility, that TL sent it to the contracting company, who then sent it to his wife.

8. The complainant said that the report seems to infer that payments processing has changed since 2012, but he said that this is not the case. He said that, in 2012, a PR had to be raised before a payment was made. The complainant said that the statement that “current financial control prevents payments being processed without a purchase requisition…” is a “filler statement and a cause for distraction in the report.”

9. The report states that nothing was found that indicates that the complainant’s performance review or appeals process were unduly affected. However, it does not mention his concerns about his 2018 review, including over five hours of meetings in October 2018 with TL and DM. He feels that this was an attempt to demean and intimidate him.  

10. The complainant said that he brought to the attention of the head of internal audit that there were discrepancies in the hiring procedures with positions being filled without jobs being advertised but this is not mentioned in the report.

Penalisation

Concluding his written submission, the complainant referred to the case at the High Court in July of this year, John Clarke and CGI Food Services Limited and CGI Holdings Limited [2020] IEHC 368, where, at paragraph 19, Mr Justice Humphreys states, “Unfortunately, it is not difficult to performance manage someone out of a job.” The complainant claims that his evidence shows that the performance issues raised by his managers “are an attempt to dress up the penalisation as a performance-related sanction.” He submitted the following arguments to support his opinion:

1. In 2012, one of the complainant’s colleagues was on reduced working and was out sick for nine months from mid-2013. His other colleague was moved to work on a project outside their department. This resulted in the complainant managing the function over an extended period, which he claims was regularised without any acknowledgement or compensation.

2. in December 2016, the complainant said that he got a commitment from an executive manager that roles in his function would be advertised. He claims that a number of people have been hired since then without the jobs being advertised internally and the complainant alleges that this is with the oversight of TL and DM. The complainant claims that he has not been able to compete for a promotion because none of the new roles were advertised to internal staff.

3. Between 2013 and 2015, when TL and / or DM were not in his line management structure, his performance reviews were satisfactory.

4. The complainant claims that he reported his concerns about the 2012 PR incident to DM in October 2018. He claims that the result of this communication was five hours of meetings and a marked down review in December. A copy of an email that he sent to TL about his review meeting on October 25th 2018 is dated October 30th 2018.   This indicates that he first became aware on October 25th 2018 that TL had made notes about his performance that he did not share with him.

5. After the Whistleblowing report was issued in January 2020, the complainant said that “the performance management became relentless” and a meeting that was conducted remotely went on for two hours instead of one hour, before he logged out, telling his manager that “it was a poor reflection on his ability that he could not manage the meeting within the stipulated one hour.”

6. One of the reasons that the complainant was given for his poor communications rating was because he didn’t attend a colleague’s farewell party.

7. Inputs into the performance review documents were not shared with the complainant as is stipulated in the performance management policy.

2018 and 2019 Performance Review

The complainant provided a copy of his 2018 performance review with his comments on the findings and his response to remarks inserted by TL and DM before the end of year review in December. He also included a copy of his 2019 end of year review document, with his comments on his managers’ assessment of his achievements under the headings of “Targets and Objectives” and “Competencies.” He said that there is sufficient evidence for me to find that the outcome is “a dress up of the penalisation for the protected disclosure.”   He referred to the case at the Court of Appeal of the UK of Jhuti v the Royal Mail Group, [2019] UKSC 55, in which Lord Wilson stated, at paragraph 60,

“If a person in the hierarchy of responsibility above the employee … determines that, for reason A (here, the making of protected disclosures), the employee should be dismissed but that reason A should be hidden behind an invented reason B which the decision-maker adopts (here, inadequate performance), it is the court’s duty to penetrate through the invention rather than to allow it also to infect its own determination.”

The complainant’s concern is that, if left unquestioned, the conduct of his managers could lead to his dismissal.

Direct Evidence of the Complainant

The complainant’s view is that TL and DM are “setting out to make my work environment unbearable and are looking to cut short my career.” He claims that he is being victimised for not raising the PR in 2012, for “calling out” DM on his investigation and for having initiated the whistleblowing process.   He complains that he lost out on salary increases in 2019 and 2020 and on two bonus payments. He alleges that he was overlooked for a promotion to a role he carried out between 2012 and 2015 in an acting capacity.

Performance reviews at the respondent company run in line with the financial year from October 1st to the end of September. Interim review meetings are generally held in March and July each year, with a final review meeting in October. Between 2013 and 2015, the complainant said that he had no problems with his performance reviews. This was a period during which TL was not part of his management structure.

In 2016, the complainant said his year-end review was a finding that, from a competency perspective, he “needs improvement.” This was the first review where TL was back in the same department as the complainant.   He said that TL “targeted my competencies” and that “he can’t challenge my targets.” The complainant said that in 2017, DM told him that he was getting a “needs improvement” only at the end of the process, which he said, defeats the entire purpose of carrying out a performance review.

In March 2018, TL and DM carried out the first performance review meeting for the 2018 financial year that commenced in October 2017. At a final review meeting on October 25th 2018, with TL dialling in from another office, the complainant said that he discovered that TL wrote minutes of their March review meeting, in which he “wrote a lot of negative comments” that he didn’t share with the complainant, but he sent them on to DM. The complainant said that he told DM that he hadn’t seen these comments and that he was concerned about TL’s motivation.   Following the October review meeting, he said that he told DM about TL’s request to him in 2012 to raise a PR for work his wife had done. In December, his rating was confirmed and the outcome remained that overall, he got a “needs improvement.” He said that DM told him that he investigated his concerns about the 2012 request to raise a PR for TL’s wife and that he didn’t find a problem with this.

In January 2019, the complainant said that he appealed against his 2018 performance rating and brought his concerns about the 2012 PR to the attention of the HR director.   He said that he told her that his refusal to raise the PR affected his 2018 performance rating. When he got no satisfaction from the HR director, on March 21st 2019, he complained directly to the CEO under the employer’s Whistleblowing Policy. He claimed that the head of internal audit told him that DM should not have investigated his complaint in December 2018, and, by implication, he argues that the HR director should not have investigated it either.

On October 22nd 2019, the complainant had a meeting with the company’s head of internal audit, who showed him a draft of the whistleblowing report. In his 2019 performance review, the complainant again received an overall “needs improvement” rating. He said that again, DM made comments about him not meeting his targets and that he thinks that this is a concerted effort to “cast me in a bad light and penalise me.”

Cross-examining of the Complainant

In cross-examining, Mr Walsh reviewed the complainant’s performance ratings for the four years from 2016 until 2019. In 2016 and 2017, the complainant received an overall rating of “good,” which returns a score of 3. In 2018 and 2019, he received an overall rating of “needs improvement” which returns a score of 2. The complainant said that 2018 and 2019 were the first years in his career in the company that he received a “needs improvement” rating. He claims that this coincided with TL “coming back into my management in 2016.” He said that the “needs improvement” rating meant that he wasn’t promoted.

Mr Walsh pointed to the fact that DM became the complainant’s “ultimate manager” in 2017.   DM and the complainant had review meetings in March and July 2018 and the complainant agreed that DM didn’t know about the PR at these meetings. He said that the earliest that DM could have known about the PR was in October 2018; however, a note written by the complainant in January 2020, indicates that he informed DM about the PR in December. The complainant said that, at the meetings in March and July, he did 95% of the talking and that, for the remaining 5% of the time, DM asked him questions. In response to questions from Mr Walsh, the complainant agreed that in October, he had a few meetings about his performance and that DM gave him feedback. However, he said that at the first meetings, it was “mostly me talking” and that at later meetings, it “became more about me explaining.”

Referring to the “needs improvement” outcome and the rating of 2, the complainant said that this was “a massive change for me” and he disagreed with Mr Walsh that performance ratings change from time to time.

Mr Walsh referred to the fact that, in accordance with the performance review appeals process, the complainant appealed against the 2018 “needs improvement” rating to his manager, DM. On December 24th, DM found that there was nothing “untoward or consequential” about the PR issue in 2012 and he did not change his performance rating.

Mr Walsh put it to the complainant that he asked DM to look into the PR issue, and not to carry out an investigation. The complainant agreed with Mr Walsh when he suggested this he was alleging that DM “is part of the conspiracy to deny you your review.”

Included in the respondent’s papers is the email from the complainant to the HR director in which he appealed against DM’s findings that his “needs improvement” rating would stand. Mr Walsh said that the HR director had no involvement in the PR issue and that she took a very supportive stance regarding the complainant’s concerns.   The complainant disagreed and said that “she dodged the issue” because, as the manager with responsibility not only for HR, but also for corporate services, she is the overall manager of the team in which he, TL and DM work. Referring to TL, DM and the HR director, the complainant said that, as part of the effort to penalise him, “they are each doing it for their own reasons.” He did not elaborate on what the reasons were.

Mr Walsh referred to an email from the HR director on February 4th 2019, in which she sets out the conclusion of her investigation into the complainant’s appeal against his “needs improvement” rating. Mr Walsh suggested to the complainant that the email shows that the HR director was interested in the complainant and committed to resolving the issues that resulted in the less than satisfactory rating. The email is long, but some of the content is worth re-producing. Commencing at paragraph two, the HR director confirmed her findings:

“Having considered everything, I don’t believe that there is a case to change your performance rating.

“I do believe that there is a fundamental issue of communications that we can work with you to resolve. I believe that this issue predates (TL’s) appointment as a Team Lead.   I understand that feedback has been ongoing with you in this regard and that while training has been provided, the impact is not being felt.

“I have asked (TL and DM) to work with you in a supportive and pragmatic fashion to ensure that you have the supports needed to make the improvements required. Some suggestions that I have put to them as follows….”

The HR director goes on to list five specific actions to be taken by the complainant, in collaboration with TL, including access to a personal communications coach. She concluded her mail as follows:

“I was struck when I met you about your passion for the role.   I also know that you are a highly committed employee and want to do the right thing for the company. I am confident that if we all work together in a supportive manner, we can resolve the current challenges.

Let me know if you would like to meet me for a follow up.   I could do so later this week or early next week.”

Disagreeing with Mr Walsh concerning the HR director’s commitment to supporting him, the complainant said, “she’s not interested in what I’m saying. She just wants to say what she’s saying.” He said that, in March 2019, the HR director “assigned my case to a subordinate” when she asked a member of the HR department to offer him assistance in relation to policies and options if he wanted to pursue the PR issue.

The complainant agreed with Mr Walsh when he said that he was aware of the grievance procedure but that he didn’t raise a grievance about his 2018 performance review.   Concerning the offer of a communications coach, he said that he didn’t think that the HR director was sincere when she made this offer and he did not accept it.

Regarding his 2019 review, the complainant agreed that he attended review meetings in April, May and July and that he got feedback about his performance, although he said that he did most of the talking. Copies of emails from DM in April, May and July 2019 were submitted in evidence and these provide information to the complainant regarding elements of his performance that were causing concern and likely to result in a less than satisfactory rating. The complainant received a “needs improvement” rating in 2019, the same as 2018. The complainant agreed that, in January 2020, even though the deadline for submitting an appeal had expired, the CEO offered him an extension of time to appeal.   He did not do so because his 2018 appeal had not been concluded and he wasn’t going to deal with the HR director’s subordinate.

Mr Walsh referred to the complainant’s whistleblowing complaint which he sent to the CEO on March 21st 2019. The complainant said that, before he submitted his complaint, he read the Whistleblowing Policy. He agreed that the policy refers to the Protected Disclosures Act 2014.   He said that his objective in making the complainant was to get the company to examine the fact that in 2012, he had refused TL’s request to raise a PR for a payment of €270 to his wife for proof-reading a draft contract and that he had been penalised in his performance review in 2018. He disagreed with the outcome of the report, issued on January 13th 2020, to the effect that there was no evidence to suggest that his refusal to raise the PR in 2012 “led to issues being raised in his performance review in 2018.”

The complainant said that, EY, the firm contracted to assist with the investigation, was appointed by the HR director and, because they have a separate contract with his employer on another project, they have a commercial interest and may not be independent.

Summarising his concerns, the complainant agreed with Mr Walsh when he suggested that TL had the intention of penalising him, that DM “was in on it,” that the HR director was involved and that EY was not independent. He said that he also has concerns about the head of internal audit and he is not satisfied with how the CEO investigated his complaint. He said that how his performance “suddenly dropped in 2018 is not explainable.”

Documents Submitted by the Complainant after the Hearing

The hearing into this complaint opened at 8.30am on October 2nd 2020. Later that day, the complainant sent me a copy of an email he sent to DM on December 18th 2018.   Referring to his decision to appeal the outcome of his end of year (EOY) review meeting which was held the previous day, the complainant said,

“There are versions of (TL’s) written commentary in what was to be a review document written by me, that you referenced at the EOY (end of year meeting). These comments some from earlier in the year of which I had no visibility does not align with my understanding of the review process. These comments need to be looked at in the context of the specific historic interaction between (TL) and I, that of the request to raise a PO which I brought to your attention during the October review.”

The complainant submitted that this email shows that he informed DM for the first time in October 2018, about TL’s request to him to raise a PR for the work that his wife did in May 2012.

On October 15th 2020, the complainant sent a second submission to the WRC.   Summarising the arguments he made at the hearing, he said that he is appealing to the WRC to find his 2018 and 2019 performance reviews invalid and to reverse them. He said that in October 2019, the head of internal audit indicated that he would recommend that TL was no longer in his line management structure because of a potential for bullying; however, this was not included in his report of January 2020 on the protected disclosure. In their response on November 4th 2020 to the complainant’s third submission of November 2nd, the respondents said that the head of internal audit did not make this comment about removing TL from the complainant’s management structure.

Referring to his 2019 review, the complainant said that comments on his performance were written up by TL and DM without his knowledge after his end of year review meeting with them on October 21st 2019. He said that he only had visibility of their comments in December 2019, when he received the “needs improvement” rating. He said that TL and DM state that he did not meet his targets, but he claims that these targets were not in his agreed actions / initiatives for the year.

Referring to the report of January 2020 into his whistleblowing complaint, the complainant said that the report makes no mention of TL making a disclosure of interest that a payment was being made to his wife. This requirement is set out in the company’s code of conduct.

While the report into the complainant’s allegations found no evidence to suggest that his refusal to raise a PR for TL’s wife led to issues being raised in his performance review in 2018, the complainant’s firm view is that the fact that TL did not share his negative comments about the complainant’s performance in the early review documents, is evidence of his intention “to unduly influence the outcome of the performance review.”

The complainant said that the report shows that the HR director and the head of internal audit reiterated their initial position which found nothing to indicate that TL could influence the initial performance management process or the appeal.   He said that the head of internal audit had no evidence that TL’s wife actually did the work for which the PR was raised or that there was a mechanism in place between the respondent and the contracting agency before the work was undertaken.

Regarding the invitation by the CEO to appeal his 2019 review, the complainant said that he did not accept this offer because his queries and concerns about the whistleblowing report had not been addressed. He said that the penalisation in the 2018 review has also not been addressed and the outcome of his 2019 review is a continuation of that penalisation.

On November 2nd 2020, the complainant sent a further submission, which was in response to the document submitted by the respondent on October 30th.

In this final submission, the complainant reiterates his request to subpoena the HR director and to challenge the evidence of DM and the head of internal audit at a subsequent hearing.

The complainant then refers to his performance review for 2019 / 2020 and a review meeting he had with DM and TL on October 30th this year. This is outside the scope of my enquiry into the complainant’s allegation of penalisation for whistleblowing which he submitted to the WRC on February 24th 2020.

The Respondent’s Annual Review Process

It is the respondent’s case that they apply a rigorous, thorough and fair annual review process and the complainant is subject to and benefits from that process in the same manner as any other employee. A copy of the performance review process was included in the respondent’s book of papers at the hearing. It provides for an appeal by an employee to a more senior manager if an employee is dissatisfied with their rating.

As can be seen from the table on page 3 above, the complainant had a mixed record in relation to annual reviews, receiving an overall rating of 2, “needs improvement” in 2018 and 2019 and an overall rating of 3, “good,” from 2013 to 2017.

DM took on the overall management of the complainant in March 2017. He manages 30 people across five teams and is responsible for rating staff in his department. He is the person who ultimately decides on the annual rating for the complainant, following consultation with other managers. A final rating is subject to an employee’s right to appeal their rating in accordance with the Performance Management Policy.

2018 Review

For the 2018 review, DM met the complainant in March, July and October that year and the overall rating of 2, “needs improvement,” was issued following a meeting between the complainant and DM on December 17th 2018. The complainant appealed against this rating to DM, in accordance with the first stage of appeal. They met on December 20th. DM was satisfied that the rating was valid, based on the complainant’s failure to achieve key targets and shortcomings with regard to engagement and communication.   The finding of “needs improvement” was maintained. DM wrote to the complainant on December 24th to confirm this outcome:

“Dear (Complainant)

“Thanks for attending the EOY outcome discussion on the 17 Dec and our follow-up meeting on the 20 Dec.

I have informed HR about your appeal.

As mentioned in our discussion, your own documentary preparation and follow-up in relation to the July interim review and your documentary preparation for the EOY review were lacking. But despite the genesis of the performance document I was ultimately equipped with sufficient commentary from yourself and (TL) via the document itself and a succession of meetings in October, to form a conclusion.

“Also as mentioned in our discussion, I spoke with (TL and the complainant’s colleague who raised the PR) about the historical incident and I don’t believe there was anything untoward or consequential as a result.

“In summary I don’t consider your grounds for appeal as sufficient to alter the outcome of the performance review process. You may wish to consider a further appeal to the (HR director) in which case I can advise you on the process in the New Year.”

On December 31st 2018, the complainant escalated the appeal of his 2018 rating to the HR director, in accordance with the second stage of the appeal process.   She issued her decision on February 4th 2019, finding that there was no case to change the performance rating. The HR director followed up with further correspondence to the complainant, which is recorded above under the heading, “Cross-examining of the Complainant.”   We know from the complainant’s evidence that the offer of a communications coach was not taken up.   The respondent’s paper notes that it is not unusual for the company to spend time working with employees who have received less favourable ratings to assist them to improve.

2019 Review

In preparation for the 2019 review, DM met the complainant in April, July and October. Copies of emails of April, May and July 2019 from DM to the complainant were submitted in evidence. DM sets out clearly the aspects of the complainant’s performance that are not satisfactory, as well as the issues that are going well. On December 17th 2019, the complainant was advised of his “needs improvement” rating. While he did not appeal the rating within the five day window, on January 14th, the CEO offered him until close of business on the 15th to do so.

The Complainant’s Whistleblowing Complaint

The complainant submitted a Whistleblowing complaint to the CEO on March 21st 2019.   A copy of his complaint was included in the respondent’s book of papers and is recorded above under the heading, “Summary of the Complainant’s Position.” On April 3rd, the head of internal audit informed him that a formal review would commence. The head of internal audit reports to the chairman of the respondent company and to the audit committee of the board of directors. The audit committee is independent of the company’s executive management and ensures that the respondent complies with its statutory and regulatory obligations.

A forensics team in EY was contracted to provide expertise and independence. The investigation was conducted by an EY partner, assisted by an senior manager under the oversight of the head of internal audit.   They conducted an extensive review over the subsequent months and engaged with the complainant and four others associated with his complaint.   The head of internal audit met the complainant throughout the process.   He asked him whether he wanted the investigation to focus on the 2012 PR issue or whether he wanted to address how he has been treated since then. They met on November 21st and December 4th 2019 to discuss and close out the matter.

A report was issued on January 13th 2020, a copy of which was included in the respondent’s papers in preparation for the hearing of this complaint. The investigation considered the complainant’s allegations concerning the performance management process and concluded that,

“Based on procedures performed, there is no evidence to suggest that the Discloser’s refusal to raise a purchase requisition in 2012 led to issues being raised in his performance review in 2018. Based on interviews performed, I conclude that the performance feedback process is robust and there is nothing to indicate that the Discloser’s performance rating or appeals processes was unduly influenced. In line with the Whistleblowing Policy, it is important to note that the Discloser is afforded all associated protections in relation to reprisals, victimisation and career progression.”

The complainant sent further correspondence regarding the outcome of the report to the CEO and he replied on January 14th and February 7th. Copies of these letters are included in the respondent’s submission.

The Complainant’s Allegations Submitted to the WRC

1. The complainant alleges that his 2018 review was unfair and that, as a result, he lost out on a bonus payment and a salary increase.

This allegation is denied by the respondent, who asserts that the 2018 review was fair and objective, that it was carried out in accordance with the standard process and that the complainant appealed the outcome to the HR director. The complainant’s appeal of his 2018 rating did not expressly challenge any of the findings regarding his targets and objectives and competencies.

2. The complainant alleges that his 2019 review was also unfair and that, as a result, he lost out on a bonus payment and a salary increase.

The respondent’s position is that this review was also fair and objective and conducted in accordance with the standard process. The complainant did not appeal this rating despite being offered an extended opportunity to do so.

3. The complainant alleges that his working life was made unbearable.

The respondent asserts that this allegation is misleading and is denied. There is absolutely no evidence to substantiate this, it is a baseless allegation and has not been vouched in any way.

4. The complainant states that his concerns about his competencies were never raised with him before the EOY 2018 outcome.

The respondent claims that this is untrue. DM raised concerns with the complainant about his competencies during the 2017 EOY meeting, which were noted in his 2017 EOY letter. DM’s predecessor raised concerns with the complainant about his competencies during the 2016 EOY meeting, which were noted in his December 2016 EOY letter.

5. The complainant alleges that he was overlooked for promotion.

This is misleading and is denied. Promotions are by application and competitive interview and, in the last three years, the complainant has never applied for a promotional opportunity.

The Respondent’s Supplemental Submission of October 30th 2020

The respondent’s supplemental submission is in response to the complainant’s documents of October 2nd and 15th. It notes that the complainant’s case was converted to a claim under the Protected Disclosures Act 2014 on September 30th 2020 and on review of the respondent’s own submission. Below is a summary of the main points in this supplemental submission:

The complainant’s case is partly statute barred, and the only alleged penalisation in scope for consideration by me is his 2019 performance review.

The 2020 performance review is also outside the scope of my enquiry.

As stated by me at the hearing on October 2nd, it is not for me to carry out a review of the complainant’s performance. The question is whether the complainant was penalised for raising a protected disclosure by having his 2019 performance rated as 2, “needs improvement.”

The respondent asserts that the complainant has failed to make a “prima facie” case that his 2019 performance rating, or any other alleged penalisation, was “wholly or mainly” due to him making a protected disclosure. In determining this matter, the Labour Court has followed the “but for” test laid out in O’Neill v Toni and Guy Blackrock Limited, [2010] ELR 21. In the context of the Protected Disclosures Act 2014, this test was outlined by the Labour Court in Aidan and Henrietta McGrath Partnership and Anna Monaghan, [2016] PDD 162 as follows:

“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.”

The underlined emphasis above is the respondent’s.

The respondent has a comprehensive performance management process which provides for the option of two appeals by an employee who disagrees with his or her rating. The complainant appealed in 2018, but did not do so in 2019. The complainant’s explanation for not making an appeal, that he had queries about the whistle-blowing investigation, is insufficient. It is a general requirement in employment law that an employee exhausts their right to appeal against treatment they disagree with or perceive to be unfair, and the respondent’s view is that the complainant’s failure to do so undermines his complaint. At the hearing on October 2nd, the complainant confirmed that he was aware of his employer’s grievance procedure but that he did not utilise that process with regard to any of his complaints.

It is the respondent’s view that the complainant is claiming that there is a conspiracy by the respondent, involving at least five people, including his team leader, department manager, the head of internal audit, the head of HR and the CEO.   It appears that he thinks that EY are also involved in this conspiracy and that it spans many years. As the underlying matter relates to the formatting of a document in 2012 for a fee of €270, this is an exceptionally unlikely scenario. These claims, without evidential basis, undermine the credibility of the complainant and questions the plausibility of his claim.

The supplementary submission of October 30th sets out the employer’s response to the allegations made by the complainant in his submissions and in his evidence at the hearing. In the interest of balance, I will set out the details of the respondent’s final submission here:

1. The complainant alleged that he raised his request for an investigation of the 2012 PR before he received his 2018 performance rating.

This important point is robustly denied by the respondent. The complainant mentioned the 2012 PR in a vague context as an aside to an October 2018 meeting and with no relevance attributed to it. In his supplementary paper, he exhibits an email dated December 18th 2018 which he relies on to make his case.   This email was sent after the end of year review meeting and does not in any way support the complainant’s case that he requested an investigation into the 2012 PR in October 2018.

2. The complainant alleged that DM concluded that the 2012 PR was not “untoward or consequential,” without a formal investigation.

The complainant at no stage asked DM to conduct a formal investigation and he was vague on the background to the issue. He asked for the historical matter of the 2012 PR to be “looked into.” DM made enquiries with the relevant people and concluded that there was nothing “untoward or consequential.”

3. The complainant alleges that his 2019 end of year review was negative because he did not attend the farewell celebration of his colleague, who in 2012, raised the PR.

DM robustly denies stating this to the complainant, or making any such finding. During the 2019 end of year review discussions on competencies, DM indicated to the complainant that he did not demonstrate the required standard of communications and engagement, which was also a theme of the complainant’s reviews in 2016, 2017 and 2018.   Examples of feedback included the following:

§    Where face to face communication would have been better than email;

§    The complainant’s poor written communication on important vendor communications, which necessitated intervention and correction by two managers;

§    Not keeping a colleague properly informed and causing that colleague wasted effort;

§    Not responding appropriately to a business manager when he reported an issue.

In the context of this discussion, DM said that he was disappointed that the complainant did not reply to an invitation to his colleague’s retirement. The complainant’s attendance at the celebration was not the issue, but his failure to respond to DM’s invitation and was not central to the broader feedback on communications and engagement.

4. The complainant alleges that DM got upset early in 2019, when the complainant invoked the Whistleblowing Policy with the CEO.

DM informed the complainant that, as his ultimate line manager, he thought that he should have been made aware of the fact that he had raised such a complaint.

5. The complainant alleges that TL’s negative comments about his soft skills on his performance review documents were hidden from the complainant and were never discussed with him at any of the 2018 review meetings or at any other time.

DM participated in review meetings with the complainant on the following dates:

21 August 2017

20 October 2017

9 March 2018

5 July 2018

25 October 2018

27 March 2019

25 July 2019

21 October 2019

It is the respondent’s case that, at the majority of these meetings, concerns were raised about communications and engagement on the part of the complainant, and / or slippage in targets and objectives. During 2018, the complainant did not properly manage his performance review document and arrived at meetings without having made any updates to the document. In this vacuum, DM asked TL to capture the meeting feedback, which DM reviewed and found to be reflective of the various meetings. It would appear that the complainant ignored the verbal feedback and only reacted when he saw it in writing.

6. The complainant alleges that the targets which his performance review found that he didn’t meet were not in his agreed actions / initiatives for the year.

The respondent’s submission notes that the targets were set and agreed at the beginning of the year.   The EOY conclusion, “needs improvement,” were based on an objective assessment of these targets, many of which were not achieved. The 2019 EOY conclusion regarding targets was not challenged.

7. The complainant alleges that review meetings became quite intense with over five hours of final review meetings in 2018. The performance review process allows for a meeting of one hour.

Performance management sessions typically last for one hour, but this is not prescribed. Due to the complainant’s poor preparation, lack of ownership of the performance document and his inability to clearly articulate the status of his work, meetings went on longer than one hour.   A weakness in communications was identified to the complainant from 2016, but no improvements have been forthcoming.

8. The complainant alleged that he never had an adverse performance review when TL and / or DM were not in his direct line management between 2013 and 2015.

The respondent’s position is that this is not relevant. The 2018 and 2019 reviews were objectively and fairly carried out and the fact that different outcomes emerged in previous years does not create an inference of penalisation.

9. The complainant alleges that in October 2019, the head of internal audit indicated that he would recommend that TL was no longer in the complainant’s line management because of the potential for bullying.

The head of internal audit denies making such a recommendation and had no authority to do so. At no point in the conversation between the complainant and the head of internal audit was there any reference to bullying.

10. The complainant alleges that he was denied a promotion when a role that he may have been suitable for was filled without it being advertised.

The respondent’s position regarding this role is that an existing senior staff member was rotated into the position as resources were redistributed.

11. The complainant refers to alleged inaccuracies in the EY report.

The respondent’s position is that this is irrelevant.

Based on all the complainant’s submissions, and the complainant’s evidence at the hearing on October 2nd 2020, the respondent’s case is that the complainant is unable to make a stateable case that requires a further response from his employer and, on this basis, I have been requested to dismiss this claim.

*Safety, Health and Welfare at Work Act 2005

The complainant asserts that he was penalised in response to three events; firstly, his communication to his manager in 2018 that he refused to raise a PR for his team leader’s wife in 2012; secondly, his criticism of his manager for the way he investigated this matter and, thirdly, his initiation of a whistleblowing complaint about the same issue in 2019. In consideration of this complaint of penalisation for making protected disclosures, my task is twofold:

1. I must consider if the events described above are protected disclosures;

2. If I am satisfied that they are protected disclosures, to determine that he was penalised in his 2018 and 2019 performance reviews, I must establish that there was a connection between his reporting of the disclosures and the outcome of his reviews.

The Relevant Law

The definition of “protected disclosure” is set out at section 5(1) of the Protected Disclosures Act 2014, “the Act.”  

“For the purposes of this Act ‘protected disclosure’ means, subject to subsections (6) and (7A) and sections 17 and 18, a disclosure of relevant information … made by a worker in the manner specified in section 6, 7, 8, 9 or 10.”

Sub-sections (6) and (7A) respectively address the disclosure of trade secrets and legally privileged information and these are not relevant for this complaint.   Sections 17 and 18 refer to law enforcement and international relations and are also not relevant here.   Sections 6 to 10 set out a tiered disclosure process and provide that information related to wrongdoings may be provided to a prescribed person, an employer, a government minister, a legal advisor or to another person.

For our purpose regarding this complaint therefore, a “protected disclosure” is the disclosure by an employee to his or her employer, or another person, of relevant information. Section 5(2) of the Act provides that,

“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.”

The operative clause concerning whether information shows that a relevant wrongdoing has occurred, is occurring or will occur is “reasonable belief.” Section 5(8) provides that in these proceedings at the WRC, “involving an issue as to whether a disclosure is a protected disclosure it shall be presumed, until the contrary is proved, that it is.” In the Q & A material included as an appendix to the “Statutory Review of the Protected Disclosures Act 2014,” the reviewers note that,

“…all that is required is a reasonable belief that the information disclosed shows or tends to show that the wrongdoing is occurring.   This is a deliberately low threshold designed to ensure that most reports are made to the person best placed to correct the alleged wrongdoing – the employer.”

It is apparent that the Act intends that “relevant information” concerning an alleged wrongdoing is provided to the employer so that the wrongdoing can be addressed and, that the employee does not have to be convinced that a wrongdoing is occurring but that the lower threshold of reasonable belief applies.

Section 5(3) of the Act lists the matters that are considered to be relevant wrongdoings:

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.

There are three components to the making out of a claim of penalisation under the Protected Disclosures Act:

1. An employee must have a reasonable belief that a wrongdoing is occurring, has occurred or might occur;

2. They must communicate what they know about the alleged wrongdoing to a prescribed person, their employer, a government minister, a legal advisor or another person;

3. They must show that, because of their communication about the alleged wrongdoing, they have been penalised.

Did the Complainant Make a Protected Disclosure?

On October 25th 2018 or thereabouts, the complainant attended a performance review meeting with his department manager. His team leader dialled in from another location. The complainant’s evidence is, that in the course of this meeting, he became aware that, following previous meetings in March and August 2018, his team leader wrote negative comments about his communications skills on his performance review document. It became apparent that the complainant might receive a less than satisfactory rating for 2018. At the end of the meeting or shortly afterwards, the complainant told his department manager that the comments may have been influenced by the fact that, in May 2012, he did not raise a PR so that his team leader’s wife could be paid €270 for proof-reading and formatting a draft contract.

What occurred in October 2018 was that the complainant informed his department manager, DM, about TL’s request to him to raise a PR for his wife. His evidence is that October 2018 was the earliest that he told DM about this 2012 event. At the same meeting, he informed DM that he was being penalised because, over the previous months, TL wrote negative comments on his performance review document.   The complainant’s case is that he reported to DM that, in his view, a wrongdoing had occurred and, at the same time, he reported that he was being penalised.

To make out a case that penalisation has occurred, an employee must show that penalisation follows from and is a consequence of having reported a wrongdoing. The cause of the penalisation is not simply knowledge of or failure to cooperate in a possible wrongdoing; it must be the disclosure of the wrongdoing. When he disclosed this information to his department manager on October 25th 2018, the complainant made no reference to a wrongdoing, or to any irregularity. By connecting the 2012 PR request with what was emerging in his performance review process, he sought to explain the reason why TL might have been negatively disposed towards him. It is my view that this is the height of what occurred and that he did not make a protected disclosure at that meeting.

The complainant alleges that the second reason he was penalised is because he “called out” DM regarding what he considers to be a sham investigation into the 2012 incident.   The complainant’s communication to the CEO and the HR director of his criticism of his manager’s investigation does not fall within the parameters of the wrongdoings set out at Section 5(3) of the Act and is not a protected disclosure.

Thirdly, the complainant claims that the fact that he initiated a whistleblowing complaint in 2019 is a protected disclosure. His correspondence to the CEO is re-produced at page 5 above and the alleged wrongdoing is described in the opening sentence:

“(TL) while my manager …requested that I raise a purchase request for his wife. I was not comfortable with his request and did not raise the PR.”

The complainant did not tell the CEO why he was uncomfortable; he did not describe TL’s request as wrong, illegal or even unusual. He gave no background to the reason TL asked him to raise the PR and he did not alert the CEO to the fact that the event happened in 2012. The complainant’s case that this communication was a protected disclosure is severely undermined by the delay of more than six years. He provided no explanation for his failure to report the matter in 2012. As a result, I have to conclude that, from 2012 until 2018, he was not possessed of any reasonable belief that the issue was serious enough to warrant reporting.

In March 2019, when the complainant asked the CEO to investigate the PR request, he had been informed the previous December by his manager that “there was nothing untoward or consequential” about it. In effect, he had been informed that, as far as his manager was concerned, the request was not a wrongdoing. He then reported the matter to the HR director as part of his appeal against his 2018 rating. In February 2019, she upheld the rating, made no adverse findings about the PR and considered he matter closed. From the response of these two senior managers, it must have been evident to the complainant that, as far as his employer was concerned, the issue of the 2012 PR was not a matter of concern, and therefore, not a wrongdoing.

I referred previously to Section 5(8) of the Act and the provision that in this enquiry, “involving an issue as to whether a disclosure is a protected disclosure it shall be presumed, until the contrary is proved, that it is.” Having considered the complainant’s evidence, I am satisfied that,

1. He did not make a protected disclosure in at his performance review meeting in October 2018 when he told his manager about the 2012 PR;

2. He did not make a protected disclosure when he complained to the HR director about the investigation his manager carried out into the issue in December 2018;

3. He did not make a protected disclosure in March 2019 when he asked the CEO to investigate the PR, by which time he had been informed that it was not a wrongdoing.

As I have decided that the complainant did not make a protected disclosure, there is no basis for an investigation into his allegation that he was penalised in his performance reviews in 2018 and 2019. My enquiry is now concluded, without hearing the evidence of the respondent.

Legislation Selected

When he submitted his complaint to the WRC, the complainant selected the Prevention of Corruption (Amendment) Act 2010, which, as I set out in my opening comments, was repealed by the Criminal Justice (Corruption Offences) Act 2018. While it is not material to my findings, I wish to note that, on September 30th 2020, the complainant selected to have his complaint adjudicated upon under the Protected Disclosures Act. On his e-complaint form which he submitted on February 24th, he made no mention of having made a protected disclosure. As a late stage change to the nature of his complaint, I am not convinced that the complainant’s intention was to invoke the protection of the Protected Disclosures Act in the first place and it seems to me that his decision to do so was in response to his employer’s submission of September 28th 2020, and the reference contained in that submission to the decision of the Labour Court in the case of Boyne Valley Foods and Barry Tyndall, PCD201. Here, the Court determined that it had no jurisdiction to hear Mr Tyndall’s complaint under the Prevention of Corruption (Amendment) Act 2010, finding instead that the issues he complained of were relevant wrongdoings as defined by the Protected Disclosures Act.

The complainant has not established that the matters he referred to in his submissions to the WRC and in his evidence at the hearing are protected disclosures within the definition at Section 5.5 of the Protected Disclosures Act 2014. It follows therefore, that he cannot satisfy the second part of the test set out in section 12 of the Act, that his 2018 and 2019 performance ratings resulted wholly or mainly from having made a protected disclosure. On this basis, I decide that his complaint is not well founded.

Protected disclosures