FULL RECOMMENDATION
SECTION 12 (2), PROTECTED DISCLOSURES ACT, 2014 PARTIES : FINANCIAL SERVICES UNION (REPRESENTED BY MR. MATTHEW JOLLEY B.L. INSTRUCTED BY BOWLER GERAGHTY & CO) - AND - GERRY HANNA (REPRESENTED BY MR. DESMOND RYAN B.L. INSTRUCTED BY REDDY CHARLTON) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Marie Worker Member: Ms Tanham |
1. Appeal of Adjudication Officer Decision No. ADJ-00017540 CA-00022685-002.
BACKGROUND:
2. The Employee appealed the Decision of the adjudication Officer to the Labour Court on 19 August 2019. A Labour Court hearing took place on 19 December 2019. The following is the Court's Determination.
DETERMINATION:
This is an appeal by Mr Gerry Hanna against the Decision of an Adjudication Officer ADJ-00017540 CA-00022685-002 under the Protected Disclosures Act, 2014 (the Act) in his claim of penalisation against his employer, Financial Services Union.
For ease of reference the parties are given the same designation as they had at first instance. Hence Mr Gerry Hanna will be referred to as “the Complainant” and Financial Services Union will be referred to as “the Respondent”.
He referred his claim to the Workplace Relations Commission on 17thOctober 2018.
By Decision dated 11th July 2019, the Adjudication Officer found in favour of the Complainant and awarded €12,500 in compensation.
Position of the Parties
As agreed with the parties, the facts of this case are not in dispute. It is also common case between the parties that a contravention of the Act has occurred. The parties are further agreed that the findings of the Adjudication Officer are accepted by both parties and that the only matter in contention between them is the quantum of the award made by the Adjudication Officer. The Court proceeded to hear the case on that basis.
Background
The Respondent is a trade union representing staff in the Republic of Ireland, Northern Ireland, and those employed by Irish institutions in Great Britain and overseas. The Complainant has been employed with the Union since 23rdJune 2005 as a Senior Industrial Relations Officer.
An investigator appointed to investigate matters raised by the Complainant, finalised his report on 2nd January 2018 and reported as follows:-
- “In the documents with which I was furnished the matters forming the subject matter of this investigation are described as “protected disclosures”. It was also made clear to me that the Solicitors for the Respondent have agreed with the Complainant’s solicitors that the protections afforded by the Protected Disclosures Act 2014 apply to the assertions and disclosures which are the subject of this investigation. Accordingly, this report is prepared in that context.”
Summary of the Complainant’s Case
The Complainant was represented by Mr Desmond Ryan, B.L., instructed by Reddy Charlton Solicitors. Mr Ryan said that the Complainant has an exemplary record of service with the Respondent, and has extensive experience, at the highest level, in industrial relations.
Mr Ryan said that as the Respondent failed to engage constructively with the Complainant on issues of concern that he raised in March 2016, the Complainant then made protected disclosures to five prescribed bodies. Through his Solicitor, on 19th September 2016, he made contact with members of the General Council and sought to meet with them to disclose his concerns. By letter dated 23rd September 2016, the Solicitor for the Respondent, sought details of the disclosures made to the designated bodies. The Complainant and his solicitor met with the Respondent solicitor and the President on 27th March 2017. At the Council’s request the Complainant prepared a submission and sent it to the Respondent’s Solicitors on 8th June 2017.
By letter dated 20th July 2017, the Complainant was advised that the Respondent had requested the assistance of a well-known, highly respected person to investigate the matters raised by the Complainant. In his report the investigator confirmed that the solicitors for the Respondent agreed that the protections afforded by the Act applied to the Complainant. Mr Ryan contended that the Complainant was penalised as a result of making a protected disclosure.
Mr Ryan said that the penalisation included being denied the opportunity to apply for roles within the organisation for which he was suited for, the Respondent’s failure to engage with the Complainant in relation to his return to work and insisting on communication being conducted through the Complainant’s legal advisers.
In support of the argument that the Complainant’s level of compensation should be increased, Mr Ryan advanced legal arguments concerning the principles laid down inVon Colson and Kamann v Land Nordrhein-Wesffalen[1984] ECR 1891 to the effect that awards of compensation must be effective, dissuasive and proportionate.
Summary of the Respondent’s Position
The Respondent was represented by Mr Mathew Jolley, B.L., instructed by Bowler Geraghty & Co. Solicitors. Mr Jolley told the Court that the Respondent recognises the outcome of the Complainant’s complaints to the WRC in respect of his claim under the Act and the Respondent has not appealed the Adjudication Officer’s Decision. He said that the Respondent acknowledges the conclusions reached and the amount of redress by way of compensation specified. The Respondent accepts that the Adjudication Officer made a reasoned decision and he submitted that the compensation awarded provided an effective remedy for the Complainant in the circumstances given the findings made. He submitted that the award was dissuasive in effect and was based upon the facts and findings at hand.
Mr Jolley said that in the circumstances where no cross-appeal has been brought, and where the Complainant has expressed his desire to limit the extent of the appeal to the quantum of compensation, the Respondent did not wish to unnecessarily take specific issue with dates and steps identified by the Complainant in the “concise statement of factual background” set out in his submission. While not in agreement with certain assertions the Respondent accepts the timeline of events specified therein.
The Law Applicable
Section 12(1) of the Act provides:-
- “An employer shall not penalise or threaten penalisation against an employee, or cause or permit any other person to penalise or threaten penalisation against an employee, for having made a protected disclosure.”
Penalisation Claim
It is not disputed that the Complainant has the protection provided under the Act therefore it is not necessary for the Court to determine whether or not he made a “protected disclosure” within the meaning of the Act. The Court notes that the Complainant relies on essentially the same set of facts to ground a claim of discrimination/failure to provide reasonable accommodation under the Employment Equality Acts and a claim of penalisation under the Protected Disclosures Act. These relate to (i) his assertion that the Respondent excluded him from the process of applying for two new roles within the Respondent organisation and failed to make any reasonable accommodation in respect of these opportunities, (at the appeal hearing before the Court, the Complainant mentioned a further role that he alleged he was excluded from); (ii) his assertion that the Respondent declined to meet with him and instead requested that he direct all issues in relation to his employment from his legal representatives to the Respondent’s legal representative, thereby obstructing his return to work; and (iii) the Respondent’s delay in permitting him to return to work despite being deemed fit to do so on a phased basis by his GP in March 2018. The Court notes that the Respondent has not appealed the Adjudication Officer Decision made under both Acts.
The Court notes that the following:-
- i.The two positions originally referred to by the Complainant were advertised nationally. It would have been preferable if the third vacancy had been brought to the Complainant’s attention while he was absent on sick leave.
ii.In circumstances where the Complainant had made allegations of a serious nature against the Respondent, which it was not disputed attract the protections of the Protected Disclosure Act, then it was not unreasonable for the Respondent to request, against a background of the Complainant already having obtained legal representation and advice since 2016, that all employment issues should be directed through the Complainant’s legal representatives via the Respondent’s legal representatives“in order to ensure there is no confusion on either side”as stated in the email dated 20thFebruary 2018, referred to.
- iii.It is not uncommon for an employer to require an employee who has been on long term sick leave to undergo an independent medical assessment before returning to work. In some cases, the common law duty of care which an employer owes to an employee may obligate an employer to adopt such a course. In these circumstances the Court cannot find anything in the manner in which this matter was approached by the Respondent to indicatemala fideson the part of the Respondent. The Court is equally satisfied that the stance taken by the Respondent in requiring this assessment before the Complainant returned to work was not in any sense in retaliation for his earlier complaints of alleged wrongdoing (‘protected disclosures’). However, the Court does accept that there was an inordinate delay in obtaining this assessment before the Complainant returned to work. The Court does not accept that justifiable reasons were presented for that delay.
The Court has given careful consideration to the extensive submissions made by both parties. The liability of the Respondent in respect of the breaches held to have occurred are not in issue in this appeal and therefore the only matter for consideration is the appropriateness of the quantum of compensation awarded by the Adjudication Officer.
Counsel for the Complainant submitted that the award was not based on sound reasoning by the Adjudication Officer and that it was not adequate or reasonable in all the circumstances of the case. Whereas Counsel for the Respondent submitted that the award was appropriate in all the circumstances of the case.
In making its submission on the redress to be awarded under the Act, Counsel for the Complainant referred to theVon Colsoncase, where the CJEU made it clear that where a right which is derived from the law of the Community is infringed the sanction for breaches must be effective, proportionate and dissuasive and must provide a real deterrent against future infractions. The doctrine of conforming interpretation was first formulated inVon Colson,this requires a national Court to interpret and apply its domestic law in light of the wording and purpose of a Directive so as to achieve the result envisaged by the Directive. This obligation arises by virtue of the transposition of Community Law, however, protected disclosure legislation is national legislation which has not emanated from the EU.
Schedule Two of the Act“Redress for Contravention of Section 12(1)”, provides for an award of compensation which is just and equitable having regard to all the circumstances. The Court notes that the Complainant’s losses were agreed at €7,540.00 i.e. taking account of payments he received under the Respondent’s Income Continuance Policy of 75% of his salary.
Therefore, the Court believes that the amount of compensation awarded by the Adjudication Officer at €12,500.00 was just and equitable having regard to the circumstances of the case.
Therefore, the Court upholds the award of €12,500.00. This award is not in the nature of remuneration.
Determination
It is the Determination of the Court that the Decision of the Adjudication Officer be upheld and orders the Respondent to pay the Complainant the sum of €12,500.00 for a contravention of the Act, to be paid within six weeks of the date of this Determination.
The Complainant’s appeal fails.
The Court so Determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
TH______________________
13 January 2020Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Therese Hickey, Court Secretary.