PDD214

1.Appeal of Adjudication Officer Decision No(s) ADJ- 00021828 CA-00028549-002.

BACKGROUND:

2.The Worker appealed the Decision of the Adjudication Officer to the Labour Court on 22 September 2020. A Labour Court hearing took place on 10 June 2021. The following is the Determination of the Court:

DETERMINATION:

This is an appeal by Tom Nolan (Complainant) against decision ADJ-00021828 of an Adjudication Officer in his complaint against his employer Fingal County Council (the Respondent). The complaint was made pursuant to the Protected Disclosures Act 2014 (the Act). The Adjudication Officer held that complaint failed.

Background

The Complainant commenced employment with the Respondent in 1979 as a clerical officer and was promoted to a grade six on the 9^thJuly 2001. The Complainant was successful in a competition for an Acting Grade 7 post and was appointed in September 2013. The Acting position was renewed on a number of occasions.

In the course of 2017/2018 arising from the role that the Complainant held with the Respondent at that time, the Complainant was subjected to harassment and intimidation from service users both at his place of work and outside of his place of work. The Complainant reported theses incidence to his line manager, and ultimately, he was transferred out of the post and reverted to his substantive grade.

It is the Complainant’s submission that he made a protected disclosure and that he was penalised by having his acting allowance removed. The majority of the relevant facts in this case do not appear to be in dispute between the parties.

Complainant’s case

It is the Complainant’s case that he made a number of protected disclosures and that the Respondent’s solution to the issues raised was to move him out of the area and revert him to his substantive grade. In his evidence to the Court the Complainant stated that he had worked in the housing department at different grade levels for close on thirty years. It was generally accepted that the section of housing where he worked was a difficult area and issues arose from time to time with the service users.

The Complainant submitted that in 2017/2018 there were a number of incidents. The first such instance he could recall was being followed on the M50 and then at a meeting with a service user in an office in the Respondent’s office he was shown a picture of the road he lived on and told the colour of his hall door. The Complainant’s evidence was that he reported theses incidents to his line manager who spoke to the families of the people involved. On another occasion he was at his gym when he was approached by a different service user who verbally abused him as he had not approved an application the service user had made.

It was the Complainant’s evidence that he reported this issue to his line manager who asked him if he wanted to report the incidence to the Guards, but the Complainant indicated that he did not want to do that. His line manager indicated that he would talk to the family concerned about the incident.

About a week later the Complainant was home on his own and there was a knock on his front door, and it was a service user. The Complainant was concerned that his family would arrive home so he arranged to meet the service user at three o clock the next day in the Respondent’s office so that the service user would leave.

It was the Complainant’s evidence that he rang his boss, and it was agreed that somebody would attend with him at the meeting the next day. It was agreed in advance of the meeting that he would hand over that particular issue to another member of staff. However, when they met the service user and advised him that the issue was going to be dealt with by some one else the service user made further threats. The service user was barred from the building, but he kept looking for the Complainant.

The Complainant went out sick in September 2018 and was out for about eight weeks. After about five weeks he got a letter asking him to attend the Respondent’s doctor which he did. The Complainant was then invited to attend a meeting with Mr O’Reilly HR and was advised he could bring his Trade Union Representative. It was his evidence that the meeting was not what he was expecting.

At the meeting he was advised that he was being transferred and would revert to his substantive grade which was grade six. The Complainant raised an objection to being reverted to his substantive grade and moved to a post in Swords. A further meeting took place on the 20^thOctober 2018 and at that meeting he was advised that he was being moved to a different department in Blanchardstown at his substantive grade.

In the course of the meeting there was mention of compensation, but the figure being discussed was very low. When the Complainant moved from the housing department his position was not filled and the work that he had carried out was divided out between existing grade sevens.

In response to questions under cross examination the Complainant accepted that he his permanent substantive grade was grade six. The Complainant accepted that the grade seven post he had applied for was not advertised as a permanent post, it was advertised as an acting post.

The Complainant also accepted that after he was moved out of the housing department the issues with the service users stopped. He accepted that the Respondent had taken some steps to try and resolve the issues he had raised and that moving him from Housing department had removed him from the source of his stress. It was put to the Complainant that the loss of the allowance was just a consequence of his moving department and was not a penalisation. The Complainant did not accept that.

The Complainant’s representative submitted that the Complainant had made a protective disclosure by raising the issues with his line manager and that the outcome of same was that he was moved and lost his allowance. The Complainant’s representative submitted that in line with section 5(1) of the Act the Complainant had disclosed relevant information in the manner required.

The fact that the Complainant had not titled his complaints a protected disclosure did not take from the fact that is what they were. The relevant wrongdoings were in line with section5 (3) and in particular 5(3) (a) and (d), In accordance with section 6(1) of the Act the Complainant had made a disclosure to his employer. It was his submission that the Complainant was penalised contrary to section 12(1) of the Act.

Respondent’s case

The Respondent did not dispute that the Complainant had raised issues with them. The Respondent accepted that there had been a number of serious incidents. It was the Respondent’s submission that they responded to each issue and had encouraged the Complainant, to report the issues to the Guards.

The Respondent did not accept that the Complainant had made a protected disclosure or that he was penalised. The Respondent accepts that the Complainant did not have to specifically invoke the Act or their Protected Disclosure procedure to be covered by the Act. It was their submission that when the Complainant had raised issues regarding his concerns for his health and safety they had responded and ultimately it was in his best interest to move from the acting post in the housing department.

The loss of the acting allowance was due to the fact that he moved out of a temporary position. The acting allowance was linked to the specific role he held in the housing department and it ceased once he left that department. Mr O’Reilly SEO HR in his evidence to the Court on behalf of the Respondent confirmed that the post the Complainant held was a temporary post. It was brought in as there had been an increase in the workload in the area which was expected to level out over time.

Immediately prior to the Complainant taking that post the particular section was headed up by a grade six. Mr O’Reilly confirmed to the Court that he met with the Complainant. He was aware that there had been a couple of incidents and that the Complainant was out sick. Initially they looked at moving him to the Finance section in Swords as he had a business degree.

They were also prepared to look at some element of compensation and advised him to get his Union to raise same. The reason they were looking to move him was that they knew that once he was no longer in the housing department the service users would no longer be interested in contacting him and the incidents would cease. The Complainant did not want to move to Swords, and he was unhappy that he would lose money by reverting to his substantive grade.

It was Mr O’ Reilly’s evidence that at the second meeting he advised the Complainant that he would be staying in Blanchardstown but in a different department. He also advised the Complainant that retaining the acting grade seven post was not an option and that he should get his Union to lodge a claim in respect of loss of earnings. In response to questions under cross examination Mr O’ Reilly stated that there was no defined period for the acting grade seven post, and it was renewed on several occasions. Mr O’ Reilly also stated that he did not accept that the incidents the Complainant reported to his line manager constituted a protected disclosure.

The next witness to give evidence on behalf of the Respondent was Mr Burke who was the Complainant’s line manager at the material time. It was his evidence that a number of issues had arisen in terms of how particular service users were interacting with staff in general and the Council had sought to resolve these issues and ensure staff were safe. In 2018 when the Complainant brought an incident to his attention, he advised him to contact the guards and that he would speak to the relevant family in respect of the incident which he did.

The family apologised for the incident. The Gym incident involved a different service user, so Mr Burke also spoke to the father of that family who apologised for the incident. It was his evidence that he felt the incidents were incrementally affecting the Complainant’s confidence. When the service user called to the Complainant’s house, he contacted the guards as the Complainant did not want to, he also spoke to the service user parents. He had a three- hour long meeting with them and he felt the issue was resolved.

It was Mr Burke’s evidence that it was generally felt that it had become untenable for the Complainant to stay in that section. He notified his line manager who notified HR. Mr Burke confirmed that other staff had moved out of the area in the past but as they held substantive posts they moved at their existing grades. It was Mr Burke’s evidence that he did have at least one conversation with the Complainant where they discussed the fact that if he moved, he would more than likely have to return to his substantive grade which was grade six. Mr Burke stated that it was never about penalisation it was just generally agreed that it was not tenable for him to stay in that post.

The representative for the Respondent submitted that they did not accept that the issues were a protected disclosure. Incidents of this nature unfortunately did arise from time to time but the Respondent had procedures in place for dealing with them. The Complainant’s line manager once the issues were brought to his attention sought to address them.

The applicable law

Section 5. of the Act states

(1) 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 (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) [Subject to subsection 7A, the motivation] for making a disclosure is irrelevant to whether or not it is a protected disclosure.
[(7A) Where a worker, referred to in subsection (1), makes a disclosure of relevant information in the manner specified by that subsection, and in respect of that disclosure of relevant information it is alleged that the disclosure concerned the unlawful acquisition, use or disclosure of a trade secret (within the meaning of the European Union (Protection of Trade Secrets) Regulations 2018 (S.I. No. 188 of 2018)), such disclosure is a protected disclosure provided that the worker has acted for the purposes of protecting the general public interest.]
(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.

S 12. (1) 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.

The issue for the Court to determine is whether the issues raised by the Complainant constitute a protected disclosure as defined by the Act and if they do constitute a protected disclosure was the proposed transfer of the Complainant and the removal of the acting allowance a penalisation as defined by the Act.

Section 5 (1) of the Act sets out that a protected disclosure is a disclosure of relevant information made by a worker in the manner specified in the Act Section 5(2)(a) states that for the purpose of the Act information is relevant information if the worker reasonably believes that it tends to show one or more relevant wrongdoing. Section 5(3) goes on to set out what matters are relevant wrongdoings for the purpose of the Act. Section5 (4) sets out that the relevant wrongdoing does not have to occur in the State and section 5(5) sets out what is not a relevant wrongdoing.

The fact of the incidents having occurred and the nature of the incidents or the facts that they arose from the position the Complainant held were not in dispute between the parties. It was not disputed before the Court that the incidents reported did not consist of or involve an act or omission on the part of the Employer. The position put forward by the Respondent was that these were Health and Safety issues which were unfortunately a hazard of the position the Complainant held and the department he was working in. The Complainant did not dispute that these were Health and Safety issues. However, it was their position that this did not prevent them from being protected disclosures in line with the Act.

The Court would accept that the mere fact that an issue is a Health and Safety issue cannot automatically mean it is excluded it from the protections of the Act. However, Section 5 (5) of the Act does provide that a matter is not a relevant wrongdoing if it is the function of the Respondent to investigate the wrongdoing. The parties both accepted that the wrongdoings complained off were a threat to the Health and Safety of the Complainant and arose from the position he held within the Respondent’s Organisation. This raises the question as to whether these wrongdoings were something that it was the function of the Respondent to investigate. The Court notes that under the Safety Health and Welfare at Work Act 2005 employer’s have a duty to provide a safe place and safe systems of work as far as is reasonably practicable for their workers.

It appears to the Court that in order to meet that duty the Respondent would have to investigate any wrongdoing that threatened the Health and Safety of their workers as happened in this case. That being the case the Court determines that the issues reported in this case would fall within the parameters of section 5(5) of the Act as a matter the Respondent is required to investigate and therefore would not be a relevant wrongdoing.

Section 5(1) of the Act requires that for a protected disclosure to be made there must be a disclosure of relevant information. Section 5(2) defines for the purpose of the Act that relevant information is a reasonable relief of the worker “if it tends to show one or more relevant wrongdoings”. As the Court has determined there was not a relevant wrongdoing as defined by the Act the appeal must fail.

The Court determines there was not a relevant wrongdoing as defined by the Act. The appeal fails The Determination of the Adjudication Officer is upheld.

The Court so Determines.

	Signed on behalf of the Labour Court
	Louise O'Donnell
TH	______________________
5 July 2021	Deputy Chairman