Complainant

Respondent

Anonymised Parties

An Acting Inspector

A Transport Company

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-00029576-001

10/07/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00029576-002

10/07/2019

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

CA-00031111-001

24/09/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00031111-002

24/09/2019

The Complainant commenced employment with the Respondent on 22 April, 2013 and works as an Acting Inspector and Bus Driver. The Complainant claims that he was subjected to penalisation by the Respondent contrary to Section 12 of the Protected Disclosures Act 2014 after having made a protected disclosure.

The Respondent disputes the Complainant’s claim that he was subjected to penalisation contrary to Section 12 of the Protected Disclosures Act 2014 as a result of having made a protected disclosure.

The Worker is also seeking to have the claim of penalisation for having made a protected disclosure investigated as a trade dispute in accordance with the provisions of Section 13 of the Industrial Relations Act, 1969.

CA-00029576-001 – Complaint under the Protected Disclosures Act, 2014

The Complainant was initially employed by the Respondent as a Bus Driver in 2013 and subsequently progressed to the position of Acting Inspector. The Complainant is fully capable and competent in this role and it is common practice that Acting Inspectors progress to full-time Inspectors over time and when positions arise. The Complainant applied for a full-time Inspector’s role advertised as AVL Service Controller when the competition arose on 11 March, 2018. The Complainant was unsuccessful with the application and was informed of same on 28 August, 2018.

The Complainant submits that there were three positions to be filled in this competition but the three Acting Inspectors that applied for the positions were all unsuccessful. Two of the successful applicants had never been in an “acting capacity” and had no experience with the specific location or the AVL system. As the outcome of the competition didn’t make sense to the Complainant, he requested an appeal on 4 September, 2018. The response from the Respondent stated that there was no appeal process, however he could request feedback of the interview from his local Regional Personnel Manager.

The Complainant and his two colleagues, who had also been unsuccessful in the competition, attended a feedback meeting on 28 February, 2018. The three representatives from the Respondent who had conducted the interviews were present at this feedback meeting. The Complainant was not given any scores or documentation in relation to his performance at the interview. However, one of the interviewers stated that the Complainant had missed out by “this much” with a pinched figure gesture. No negative feedback was given to the Complainant and he requested all documentation relating to his interview. One of the other interviewers responded that it “was against Company policy” to give out that information. The Complainant was not satisfied with this response and subsequently requested his data under Data Protection legislation. The Respondent’s CEO subsequently informed the Complainant that his data request could not be fulfilled as his data relating to the interview had been lost.

The Complainant and his two colleagues made a protected disclosure to the Respondent by letter dated 19 September, 2018 in relation to the alleged wrongdoing which they had witnessed regarding the misappropriation of the recruitment and selection process together with the aggressive behaviour of some members of management within the organisation. The protected disclosure raised concerns in relation to the following acts of alleged wrongdoing:

·       That a senior Manager within the organisation, due to a personal relationship with a specific member of staff, had a conflict of interest, and that as a result of that conflict of interest improperly influenced the promotion of a staff member by: the creation/modification of an additional AVL Control Centre Manager position in the specific region and/or affected the selection process so that a certain member of staff was promoted to the position.

·       That the appointment of three individuals to the roles of AVL Controller in the specific region was improperly influenced, to the extent that it was an unfair competition.

·       That in some cases roles are not advertised.

·       That there was a culture of bullying and intimidation in the specific region.

·       That the Complainant was subjected to a threat from a member of staff, which was subsequently investigated by the Gardaí, and that the Complainant had been offered no support by the company.

On 22 November, 2018, the Respondent’s CEO wrote to the Complainant to acknowledge receipt of the complaint and assured him that the matters raised would be taken seriously an appropriately investigated. The CEO indicated that the Respondent’s Head of Internal Audit had been commissioned to conduct a preliminary investigation and that he would consider these findings and write again on how he intended to proceed.

The Respondent initiated a meeting with the Complainant and his two colleagues on 20 March, 2019 to discuss the outcome of the protected disclosure. The meeting was held at a local hotel and the Respondent’s CEO and HR Manager (Ms. B) were in attendance. The Complainant submits that Ms. B led the meeting in an aggressive and agitated approach and first suggested that they “should have just e-mailed [the CEO] instead of making a Protected Disclosure”. She then suggested the reason for the disclosure was their unsuccessful applications for the position of Inspector and directly stated that they were “bitter men”. Ms. B then stated that “the best men got the jobs” and when asked about the interview notes she stated “we destroyed it” and to ”get over it”. When they queried the reasons why their Supervisors did not complete the Report Form (prior to the interview), Ms. B responded by stating that “we take no notice of these forms”. The subject of the actual disclosure arose, and it appeared that Ms. B got increasingly agitated and aggressive and stated “did you not think of other people’s families and the distress you caused them, with no thought for the stress they went through”. Ms. B while closing out the meeting relayed that she would thinks about what to do next. The Complainant submits that this encounter felt as if Ms. B was berating him and that he has since feared for his job with the Respondent.

The Complainant submits that it is not understood how the preliminary investigation into his protected disclosure resulted in the actual investigation, however, this it seems was what occurred. The outcome of the disclosure was relayed to the Complainant on 13 March, 2019 where none of the disclosures were substantiated. The Complainant contends that the investigation of the protected disclosure took five months and the manner in which it was conducted was lacking in transparency on the basis that there were no terms of reference; no methodology; no detail or rationale of the findings; no reference to the internal policy and no right of appeal.

On 28 March, 2019, the CEO wrote to the Complainant and attached a summary of the findings but he has never received a report to date. The CEO in this letter went on to encourage a strong working relationship and that he hoped the Complainant would engage in good faith in the essential dialogue that was needed to ensure everyone worked together in the best interest of the Company. The Complainant submits, however, that the constructive dialogue that the CEO referred to was lost on the Management side of the Company.

The Complainant submits that he was subjected to three acts of penalisation as a result of having made the protected disclosure, namely:

·       Firstly, the manner in which the Respondent handled his protected disclosure and the hostile and aggressive manner in which he was treated by Ms. B at the meeting on 20 March, 2019 which included being called a “bitter man” and having a “grudge”. The Complainant contends that he was left in fear for his position and continued employment with the Respondent arising from his treatment by management at this meeting.

·       Secondly, that he was required to re-apply for the position that he already completed on a regular basis. In this regard, the Complainant contends that in April, 2019, a competition was advertised for a new “Acting Service Supervisors Panel” and the advertisement stated that: “As this is a new panel, existing Acting Supervisors are required to re-apply for consideration”. The Complainant submits that this was the first occasion that this requirement had been placed into such an advertisement and it was contended that this was not the case in other regions around the country. The Complainant submits that the Services Manager was named in the protected disclosure and he was now running this competition which left him feeling very vulnerable.

·       Thirdly, the recently appointed Acting Inspectors are now being trained on the AVL system. This attracts a higher salary and the Complainant has had weeks of experience using the system but cannot see how this will situation will reverse into the future.

The Complainant submits that it is settled in law that a detriment does not require some physical or economic consequence. The Complainant contends that the detriment which he has suffered as a result making the protected disclosure relates to the manner in which he was berated and castigated by Ms. B at the meeting on 20 March, 2019 and the unquantifiable damage to his standing and reputation within the organisation. The Complainant submits that he is in fear of his livelihood and believes that he has been blacklisted with little or no hope of promotion in the future. The Complainant also contends that the process surrounding his protected disclosure did not remain confidential and this could be perceived as a deterrent for such disclosures in the future. The Complainant believes that his standing in the organisation has been damaged beyond repair and while it is accepted that the Respondent cannot control gossip and rumours, this has done untold damage to him.

Evidence of Mr. C (Work colleague of Complainant)

Mr. C stated that he was one of the three employees (including the Complainant) that made a protected disclosure to the Respondent in relation to the issues detailed above. Mr. C stated that he was also in attendance at the meeting that took place on 20 March, 2018. Mr. C stated that he was expecting to receive feedback on the protected disclosure at this meeting but instead he was berated by Ms. B for having made the protected disclosure. Mr. C stated that he was left in no doubt that his job was in jeopardy as a result of the manner in which he was treated and spoken to by Ms. B at this meeting.

The Complainant relied upon the following cases in support of his position, namely: Shamoon -v- Chief Constable of the RUC [2003] UKHL 11, Aidan & Henrietta McGrath Partnership -v- Anna Monaghan PDD162 and A Psychiatrist -v- A Health Service Provider ADJ-00017774.

CA-00029576-002 - Dispute under Section 13 of the Industrial Relations Act, 1969

The Worker contends that he was berated by the Employer for raising a protected disclosure relating to certain activities within the company. The Worker submits that he attended a meeting with the Respondent’s CEO and HR Manager (Ms. B) on 20 March, 2020 in relation to the protected disclosure and that he was called a “bitter man” and asked if he had thought about other people’s families prior to making the protected disclosure. The Worker contends that he was required to re-apply for the position of Acting Inspector, which he ad held for the previous three years, by way of penalisation for having made the protected disclosure.

The Worker is seeking to have this matter investigated as a trade dispute in accordance with the provisions of Section 13 of the Industrial Relations Act, 1969.

CA-00029576-001 – Complaint under the Protected Disclosures Act, 2014

The Respondent submits that the Complainant is employed as a Road Passenger Driver and has acted in a temporary capacity as a Road Passenger Supervisor for the last number of years and continues to do so. In 2017/18, the Respondent created a new position and grade nationally within the Company that of Automatic Vehicle Location Controller (AVL). These positions were graded at supervisory level. In the location where the Complainant is based there was three vacancies for AVL Service Controller published in February, 2018. Staff notices were posted on notice boards locally for the attention of all staff. Similar positions were advertised for other regions throughout the country.

In the region where the Complainant is based there were 34 applications from all grades of staff (Driver, Clerical and Maintenance staff). The Head of Planning and Performance, who is in charge of AVL nationally issued through central Human Resources, a structural questionnaire to all applicants to assist in shortlisting of candidates for selection for interview. There were also a number of withdrawals from the process at this time and twelve from the 34 candidates were invited for interview. Due to annual leave/illness interviews were then held in July, 2018.

The interview panel consisted of the AVL Control Manager, Services Manager (both from the location where the Complainant is based) and the Regional Human Resources Manager (South). A standard list of questions directly related to the new AVL position/function was used in the interview.

The outcome of the interview process was announced on 9 August, 2018. Three successful applicants were appointed from 16 September, 2018. A number of unsuccessful candidates (four) requested feedback on the interview and this was given on 27 September, 2018 by the three members of the interview panel. Feedback is provided verbally and on a confidential basis to the interviewees only.

The Respondent submits that the selection process for the AVL positions was carried out in a fair and consistent manner. The AVL Controller position is a new role and function with a specific skill set. The Respondent contends that the recruitment and selection process for the AVL positions (in the Complainant’s region) was conducted fairly and in keeping with the standard selection procedures conducted throughout the country for those positions.

The Respondent submits that the Complainant along with two colleagues initiated a protected disclosure investigation following the conclusion of the selection process which was dealt with in keeping with the Respondent’s Protected Disclosures Procedures. The investigation of the protected disclosure was conducted by a member of senior management and the findings were given and discussed with the Complainant by the Respondent’s CEO and the HR Manager (Ms. B) on 20 March, 2019.

The Respondent disputes the claim that the Complainant was subjected to penalisation for having made a protected disclosure. The Respondent contends that it is normal practice for employees who have been carrying out Acting Supervisor duties to re-apply for such roles as it facilitates opportunities for other employees to apply for such roles. The Respondent also disputes the Complainant’s contention that he has been “blacklisted” in any manner within the company as a result of making the protected disclosure.

CA-00029576-002 - Dispute under Section 13 of the Industrial Relations Act, 1969

The Employer disputes the claim under Section 13 of the Industrial Relations Act, 1969.

CA-00029576-001 – Complaint under the Protected Disclosures Act, 2014

The Law

Section 5 of the Protected Disclosures Act, 2014 contains an exhaustive definition of the term “protected disclosure”.

“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.

“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 Complainant claims that he was subjected to penalisation contrary to Section 12 of the Protected Disclosures Act 2014 after having made a protected disclosure in relation to alleged wrongdoing related to the misappropriation of the recruitment and selection process together with the aggressive behaviour of some members of management within the organisation. The Complainant contends that the detriment which he has suffered as a result making the protected disclosure relates to the manner in which he was berated and castigated by a member of senior management, the unquantifiable damage to his standing and reputation within the organisation and that he was required to re-apply for a supervisory position that he has already held. The Complainant submits that he is in fear of his livelihood and believes that he has been blacklisted with little or no hope of promotion in the future.

The Respondent disputes that the Complainant was subjected to penalisation as a result of having made the protected disclosure. The Respondent contends that the protected disclosure was investigated by a senior member of management in accordance with its internal procedures and that the findings were notified to and discussed with the Complainant.

In considering this matter, I note that the Labour Court held in the case of Aidan & Henrietta McGrath Partnership -v- Anna Monaghan PDDI62 that: “The Court must first establish that a protected disclosure has been made before it can examine whether a penalisation within the meaning of the Act has occurred”. Therefore, the first issue I must address is whether or not the above-mentioned disclosure made by the Complainant constitutes a protected disclosure within the meaning of Section 5 of the Act. A “protected disclosure” is defined in Section 5(1) of the Act as the disclosure of “relevant information” made by a worker. To qualify as “relevant information”, a worker must reasonably believe that the information disclosed tends to show one or more “relevant wrongdoings” and the wrongdoing must come to the workers attention in connection with their employment. I note that the Respondent accepted that the disclosures made by the Complainant constituted a protected disclosure within the meaning of the legislation. Therefore, having regard to the evidence adduced, I find that the disclosures made by the Complainant and his two work colleagues on 19 September, 2018 constitutes a protected disclosure within the meaning of Section 5(3) of the Act.

The question then turns to the issue as to whether or not the Complainant was subjected to penalisation for having made the protected disclosure. In this regard, I note that the Labour Court stated in the Aidan & Henrietta McGrath Partnership case that: “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 Complainant contends that he was subjected to three acts of penalisation for having made the protected disclosure. The first act of alleged penalisation relates to the manner in which the Respondent handled his protected disclosure and the hostile and aggressive manner in which he was treated by Ms. B at the meeting on 20 March, 2019 which included being called a “bitter man” and having a “grudge”. This meeting had been convened by the Respondent to provide feedback in relation to the findings of the investigation in relation to his protected disclosure. The detriment complained of by the Complainant arising from this act of penalisation relates to the manner in which he was castigated and berated by management at this meeting which resulted in him being left in fear for his position and continued employment with the Respondent and that he has been “blacklisted” within the organisation with little or no hope of promotion in the future.

The Complainant adduced very credible and compelling evidence in relation to his interaction with the two senior members of the Respondent’s management team (namely Ms. B, HR Manager and the CEO) at the meeting on 20 March, 2019. The Complainant’s evidence in relation to the aggressive and hostile nature of this meeting was corroborated by his work colleague, Mr. C, who was also in attendance at this meeting. The Respondent was not in a position to refute the Complainant’s evidence on this matter as neither Ms. B nor the CEO attended the hearing to give evidence. On balance, I accept the Complainant’s evidence on this matter that he was admonished and treated in an aggressive and hostile manner by Ms. B at this meeting. Moreover, it is clear that such treatment clearly breaches the procedures outlined in the Respondent’s internal policy on Protected Disclosures which states at Section 5 (Safeguards) that: “[The Respondent] recognises that the decision to report a concern may be a difficult one to make, not least because of the fear of victimisation by the person named in the disclosure or by their employer. [The Respondent] will not tolerate any harassment of victimisation (including informal pressure) ….”.

I accept the Complainant’s evidence that the inappropriate treatment to which the Complainant was subjected by Ms. B at this meeting was profoundly distressing for him and led him to believe that his reputation and future prospects within the organisation had been is some way tarnished or damaged. In the circumstances, I find that the inappropriate treatment to which the Complainant was subjected by Ms. B at this meeting affected him to his detriment. Moreover, in the absence of any contradictory evidence from the Respondent, I take the view that it is not unreasonable to conclude that the operative cause for the said detrimental treatment of the Complainant at this meeting was the fact of him having made the protected disclosure. Having regard to the totality of the evidence adduced and the submissions made by the parties on this matter, I find that there is sufficient evidence to conclude that the “but for” test has been met and that the Complainant was subjected to the detrimental treatment complained of at this meeting as a result of having made the protected disclosure. Accordingly, I find that the Complainant has been subjected to penalisation by the Respondent within the meaning of Section 12 of the Act in relation to this aspect of his complaint.

The second act of penalisation alleged by the Complainant relates to the claim that he was obliged to re-apply for the position of Acting Service Supervisor that he had already being carrying out on a regular basis. The Respondent disputes the claim of penalisation and contends that it applies a universal practice throughout the organisation whereby all employees who have been carrying out Acting Service Supervisor duties are required to re-apply for such roles on a periodical basis as it facilitates opportunities for other employees to apply for such roles. On balance, I have found the Respondent’s evidence on this matter to be more compelling and I find that the requirement for the Complainant to re-apply for inclusion on the Acting Services Supervisors Panel in April, 2019 was wholly unrelated to the protected disclosure, and therefore, no detriment within the meaning of Section 12 of the Act arises in relation to this aspect of his complaint.

The third act of penalisation alleged by the Complainant relates to the claim that the successful candidates in the AVL Controller Supervisors competition have been appointed and are receiving training on the AVL system whereas he has not been afforded the opportunity to similarly progress in his career. I note that that the Complainant raised concerns in his protected disclosure in relation to the alleged misappropriation of the selection process in terms of the conduct of this competition. However, I am satisfied that the appointment of the AVL Controller Supervisors has occurred as a consequence of their successful participation in the competition which was conducted by the Respondent for the purpose of selecting persons for such positions. It is not a matter for me to investigate or decide which candidates were the most meritorious of selection in this competition. In the circumstances, I find that I have not been presented with any evidence from which I could reasonably conclude that these appointments were made as a consequence or in retaliation for the Complainant having made a protected disclosure. Accordingly, I find that the Complainant was not subjected to penalisation contrary to Section 12 of the Act in relation to this aspect of his complaint.

CA-00029576-002 - Dispute under Section 13 of the Industrial Relations Act, 1969

The Worker has claimed that he was berated and penalised by his Employer for making a protected disclosure and has referred this matter for investigation in accordance with the provisions of Section 13 of the Industrial Relations Act 1969.

The Worker confirmed at the oral hearing that this dispute is based on the same set of facts that are contained within the complaint of penalisation contrary to Section 12 of the Protected Disclosures Act, 2014. The statutory framework for making a complaint in relation to such matters is clearly provided for in the Protected Disclosures Act, 2014. The Worker has already sought redress in respect of the claim of penalisation in accordance with the statutory framework set out in that enactment.

In the circumstances, I find that the complaint of penalisation for having made a protected disclosure in the instant claim does not fall within the definition of a “trade dispute” for the purpose of Section 13 of the 1969 Act. Accordingly, I do not make any recommendation in favour of the Worker in relation to this dispute.

CA-00029576-001 – Complaint under the Protected Disclosures Act, 2014

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

I find that the Complainant has been subjected to penalisation by the Respondent contrary to Section 12(1) of the Protected Disclosures Act, 2014. Accordingly, I find that the complaint is well founded.

Therefore, in accordance with the provisions of Schedule 2 of the Act, I require the Respondent to pay the Complainant compensation in the amount of €7,500.00 which I consider just and equitable having regard to the circumstances of the case.

CA-00029576-002 - Dispute under Section 13 of the Industrial Relations Act, 1969

Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.

I find that the complaint of penalisation for having made a protected disclosure in the instant claim does not fall within the definition of a “trade dispute” for the purpose of Section 13 of the 1969 Act. Accordingly, I do not make any recommendation in favour of the Worker in relation to this dispute.

Protected Disclosures Act, 2014 – Section 5 – Relevant Wrongdoing - Section 12 – Penalisation – Detriment - Industrial Relations Act, 1969 – Section 13 – Trade Dispute – No Jurisdiction