Complainant

Respondent

Anonymised Parties

Security Officer

Respondent

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00032649-001

03/12/2019

The Complainant is employed as a security officer and is based in a North side venue since the 1st January 2009. His normal place of work is in the reception area. The management company of the Centre is Company A.

The Complainant was very concerned in relation to the actions of a maintenance person Mr RR who frequently misused the CCTV system for his own gratification. He did not have a PA licence to operate or use these cameras. Mr. RR was employed by the management Company, Company A, and was senior to the Complainant. The Complainant brought this to the attention of management several times, over the years but to no avail. Aware that Mr RR seemed to be able to act with impunity and remaining concerned the Complainant discovered in April 2019 that Mr. RR was continuing to abuse the CCTV system and had made 3 videos. Previously Mr RR had told the Complainant that he downloaded images of women and shared them with his mates.

The Complainant reported the matter to the North side venue Security Manager Mr YB in or around April 2019 . The Complainant got nowhere as Mr YB told him to keep quiet as the matter could end up in Court and he could be accused of making it up and that it was a waste of time.

The Complainant then reported the matter to Mr HK Social Welfare Manager. He was shocked but said the cameras were not under his control but that he would contact Company A. There is an anonymised report that refers to Mr ED disclosing his information to YYY on the 23 April 2019. Mr ED explained what was happening and that he had informed his own Manager in the respondent and his manager had told him he would have to have proof of his allegations before anything could be done. He was told that any investigation would require him to provide evidence and proof. The Report seems to be redacted. He also reported the matter to Ms RP – Law Centre on the 29th April 2019  

The Complainant then went to the Garda Station in Coolock and reported the matter and finally exasperated by the lack of response to his disclosure of wrongdoing the Complainant did an interview on the Joe Duffy Show. That finally seemed to result in action as Co. A and the respondent started to take steps to deal with the situation and commenced an investigation.

In response to a Data Access request to N….. a redacted Report Form was disclosed. The anonymised author which seems to be Ms RP states:

“ I received a phone call from the complainant a respondent security guard . He told me that there were people working in the Centre making improper videos of women, the women were working in the centre and members of the public using the services of the centre . He told me he has spoken to the Gardai and had reported it to OPW”

The phone call was on the 29 April 2019 .   The complainant’s recollection is that he spoke directly to Ms RP

The report then explained follow up action which is difficult to follow as it is heavily redacted. . However it seems there was contact with the OPW and that it confirmed that Co. A would be conducting an investigation into the allegations.

These efforts of the Complainant to put an end to the wrongdoing and abuse of female visitors and employees in the Civic centre took a toll on the Complainant. He had been warned previously that Mr RR was difficult and dangerous and a hands-off approach was taken to him even when the Complainant brought incidents to the attention of the management company. The Complainant believed his car had been interfered with and he was threatened by Mr RR. This made the Complainant very nervous but he courageously brought forward the information about the wrongdoing.

As part of the investigation the Complainant made a statement to Co. A on the 1st May 2019 and was interviewed on the 22 May 2019 by Mr AM Director , Mr EB Secuity Manager Co. A and Mr YB of the respondent.

The statement dated 1st May 2019 describes in his own words what he complainant discovered ,what he did about it and how he was not listened to . He described how he felt under threat of attack in work or home or en-route He states others are afraid of physical harm. He states his belief that Mr RR was out of control. Accordingly, the Respondent was on notice from that point that the discloser was vulnerable, afraid and intimidated but took no steps to protect the discloser.

The Minutes of the meeting dated 22 May 2019 attended by Co. A and The respondent confirm the protected disclosure made by The complainant . It also confirms that the complainant was under “enormous stress” and that he felt under threat of attack. He described how security guards had told him to watch his back. He described how in the past Mr. RR had made such comments as

·         Talked about having a cross bow and pellet gun and licenced shot gun

·         Puncture tyres in the car park

·         Beats up people that annoy him

·         Garda friends send him pictures of dead bodies

·         Wife works in chemical industry, wife got laxative water that he placed in a Ballygowan bottle

·         Put sugar in petrol of neighbours Has thrown acid on cars

·         Has shot neighbour pets

Despite these detailed and frightening concerns and examples the Respondent took no steps to assure or protect the discloser the complainant.

The complainant gave a written report on the intimidation and threats by Mr. RR as for example in the Log Form dated 12 June 2019 He gives 6 specific examples and finishes by stating he was “totally stressed out with all this . He felt intimidated, threatened and anxious.

Despite this further complaint and cry for help nothing was done

Finally, at the end of June he was clocking in and was told by his Manager Mr YB that he was not going to the CC but instead had to go to the CDC. The complainant asked why, and he was told it was for his own safety. The complainant queried this, and he was told he could stay in the CDC building or go home. The complainant then went to work in the Centre. Around 4 pm he was visited by Mr EB and Mr YB. Mr EB said he was sorry they took so long but he would not have to work with Mr RR again. The complainant asked where he was gone and he was told he can’t be told that. The complainant was kept in the dark but believes that Mr RR continued to work in the Centre. The complainant was very upset as he believed that his transfer would indicate that he was somehow at fault and he learnt that others thought he had made the videos. The complainant had asked several times that something should be done to clear his name but got nowhere. Shortly after the complainant became ill and remains on sick leave on a sick certificate that describes his illness as an adjustment disorder which is a consequence of the above.    

 Protected disclosures

Section 5

1)      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.

         (4) For the purposes of subsection (3) it is immaterial whether a relevant wrongdoing

             occurred, occurs or would occur in the State or elsewhere and whether the law

             applying to it is that of the State or that of any other country or territory.

         (5) A matter is not a relevant wrongdoing if it is a matter which it is the function of the

             worker or the worker’s employer to detect, investigate or prosecute and does not

             consist of or involve an act or omission on the part of the employer.

         (6) A disclosure of information in respect of which a claim to legal professional privilege could        be maintained in legal proceedings is not a protected disclosure if it is made by

               a person to whom the information was disclosed in the course of obtaining legal

               advice.

       (7)  The motivation for making a disclosure is irrelevant to whether or not it is a protected              disclosure.

(8)    In proceedings involving an issue as to whether a disclosure is a protected disclosure it shall be presumed, until the contrary is proved, that it is.

It is submitted the Complainant was penalised arising from this Protected Disclosure

The protection provided under the Act is afforded to persons who have made a protected disclosure within the meaning of the Act

Meaning of Penalisation

Section 3 (1) “penalisation” means any act or omission that affects a worker to the worker’s detriment, 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;

The Penalisation of the Complainant is encompassed by a) c) e) f) g) h) i)

The section is summarised under the Code of Practice SI No 464 of 2015

“Generally speaking such action by the employer would encompass any action which could be interpreted as penalisation by the employer for having made a protected disclosure “

In regard to the burden of proof , it is to be noted that in WRC determination ADJ – 0000 0456,(delivered on 22 March 2017,) concerning a claim for unfair dismissal by a nurse against a nursing home, the adjudicator held that the complainant had made protected disclosures and held that the respondent had not established that any of the actions taken against the complainant were not connected to the disclosure itself.ie the burden of proof is on the respondent

In the case of Fecitt v NHS Manchester [2011] EWCA Civ 1190, [2011] All ER (D) 208 (Oct), the Court of Appeal (CA) also looked at the causation issue. The workers made protected disclosures and this led to a general breakdown of relations with their fellow workers. As a result of that breakdown the workers were subjected to a number of detriments. The CA held (obiter) that, in detriment cases , the test is whether the protected disclosure 'materially influences (in the sense of being more than a trivial influence) the employer's treatment of the whistleblower'.

The Complainant has been employed by the Respondent since 1st of January 2016, on a yearly contract which is subject to funding from Department of Rural and Community Development.

The Complainant is employed as a Security Officer as per his Contract of Employment dated the 1st day of January 2019( hereinafter called “ The Contract”). The Contract states that the Complainant will normally be required to work at a north side Centre but may be asked to work at the premises of other organisations as the Respondent may require.   The Respondent operates the security services for the ……..which operates the Northside Centre and provides office space and facilities for local businesses.

The Contract states that the Complainant may be required to be flexible in his position and must be prepared to undertake other such work as may be assigned to him for time to time.

The Complainant alleges that he has suffered penalisation after making a protected disclosure in relation to the operation of CCTV cameras by an employee of Company A, the company which provides facilities management for the Northside Centre.

On the 23rd of April the Complainant originally spoke to Mr YB with a vague report about the use of camera 18 in the Northside Centre. This was the first time the Complainant has approached Mr YB concerning the matter. Mr YB asked the Complainant to detail his complaint in writing. Mr YB then informed the Security Supervisor, Mr DR, to make sure that a written report from the Complainant was obtained when the Complainant came back into work on the 27th of April. The Complainant did not provide any names or details at that meeting.

On the 27th of April Mr DR asked the Complainant for the written report and was told by the Complainant that he would not be providing a report and that he had in fact reported the matter to the Gardaí in Coolock.   Please see written statement from Mr DR attached.

On the 30th of April another security officer Mr ND reported to Mr YB that the Complainant has been speaking with various tenants in the   Centre regarding the matter with the cameras.   Mr YB then contacted Mr AM from Company A and was asked to provide a written report.

On the 1st of May, Mr YB had a meeting with the Complainant in his office where he requested a written report from the Complainant. The Complainant wrote the report in Mr YB’s presence which was forwarded to Mr AM in Company A. At no time during this meeting did the Complainant express any reservation about working with the Company A employee nor did he express any fear or discomfort in doing so.

Between the 1st of May 2019 and the 12th of June 2019, there was no further mention from the Complainant about the Company A employees behaviour.

On the 12th of June the Complainant reported to the Respondent that the Company A employee was verbally abusing him. The Complainant detailed his complaint in the Report Book and Mr YB emailed the report to Company A. Mr YB then informed the Complainant that he could change his post to another building on the campus, but the Complainant responded that he did not want to be changed as he had done nothing wrong.   The Complainant had the opportunity to move to another building within the campus but chose not to move.

On the 25th of June, Mr YB spoke to the Complainant and told him that his post for that day would be changed as the Company A employee was going to be suspended that day. For the Complainants own safety and welfare, Mr YB wanted to ensure that the Complainant was not present at that time.   Mr EB the manager from Company A then informed the Complainant that the Company A employee had been suspended. The Complainant then asked Mr YB did he still have his job and Mr YB told him he could see no reason why he would not have his job.

On the 29th of June, the Complainant returned to his post in the Northside Centre as normal.

Since the 1st of July 2019, the Complainant has not returned to work, as he has been on sick leave.

The matter of the investigation into the Company A employee is a matter for Company A and it is not within the Respondents control.

CONCLUSION

The Respondent denies the claim that the Complainant has been penalised due to the making of a Protected Disclosure.

1.         It is denied that the Complainant made a Protected Disclosure. A Protected Disclosure involves the disclosure of relevant information made by a worker in relation to relevant wrong doings that came to the workers attention in connection with their employment.

Part 2 Section 5(5) of the Protected Disclosure Act 2014, states that the following:

“ A matter is not a relevant wrongdoing if it is a matter which it is the function of the worker or the workers employer to detect, investigate or prosecute and does not consist of or involved any act or omission on the part of the employer”

It is asserted by the Respondent that it was within the Complainant’s duty as a Security Officer to report the activities of the Company A employee and that the disclosure of the information was within the remit of the Complainants duties and obligations as a Security Officer.

2. It is denied that the Complainant suffered any Penalisation by the disclosure on the basis of the      following:

·         The disclosure was not a Protected Disclosure as defined by the Act;

·         The Respondent was exercising their duty of care to the Complainant when they moved the Complainant to another post for one day within the campus on the day that the Company A employee was suspended. This was done for the Complainants own welfare. When the Complainant returned to work on the 29th of June it was back at his original post. It is also maintained that the Complainant’s Contract permits the Respondent to vary the location of the Complainants work within the campus.

The Respondent states that the Complainants position is open to him when he is ready to return to work. In October 2019, the Respondent employed another security guard on a temporary basis as the Complainant’s sick leave was ongoing for 3 months and the position could not be left unfilled indefinitely.

The complainant is employed by the Respondent but works in a centre where there are individuals employed by different entities. His contract of employment states:

“You will normally be required to work at N…….. but you may be asked to work at the premise of other organisations as the employer may require. You will be given as much notice as is reasonably possible prior to any change”

The complainant states that he made several disclosures in relation to an individual who was employed by a third party entity. The respondent had no control over the individual and had no power to force Company A to discipline him.

The complainant was clearly distressed by the behaviour of Company A’s employee. The Respondent invoked the clause in the complainant’s contract of employment and offered him to a different location within the campus. In the circumstances there was nothing else they could do to protect the complainant. On the day Company A’s employee was being suspended the respondent tried to make sure the complainant was not in the vicinity at the time. In doing so they acted responsibly and within the boundaries of the complainant’s contract of employment.

The Respondent argues that it was also one of the complainant’s contractual duties to report the concerning activities of Company A’s employee to the respondent and as such comes within the remit of Section 5(5).

Section 5 (5) A matter is not a relevant wrongdoing if it is a matter which it is the function of the worker or the worker’s employer to detect, investigate or prosecute and does not consist of or involve an act or omission on the part of the employer.

I find that it was one of the complainant duties, as a security guard, to report matters of concern to his employer who in turn could report the matter/s to the relevant entity or authority. As such the incidents reported by the complainant cannot be relevant wrongdoings because he was merely carrying out the function for which he was employed.

The complaint fails.

The complaint fails.