FULL RECOMMENDATION
SECTION 12 (2), PROTECTED DISCLOSURES ACT, 2014 PARTIES : IRISH PRISON SERVICE (REPRESENTED BY PETER LEONARD B.L, INSTRUCTED BY CHIEF STATE SOLICITOR'S OFFICE) - AND - NOEL MC GREE (REPRESENTED BY REIDY STAFFORD SOLICITORS) DIVISION :
SUBJECT: 1.Appeal of Adjudication Officer Decision No’s: ADJ-00005583, CA-00007777-001. Summary position of the Complainant The Complainant did not attend the hearing of the Court but was represented by a solicitor, Mr Andrew Cody. Mr Cody submitted that the Complainant, through him, had reached an agreement with the Appellant, through its legal representative, that the decision of the Adjudication Officer which is under appeal to the Court should be set aside. He submitted that, shortly before the hearing of the Court, he had, by means of an e-mail to the Court, withdrawn his original complaint which had been made to the Workplace Relations Commission on 24thOctober 2016 and which had been decided by an Adjudication Officer in exercise of her jurisdiction under Section 41 of the Act on 6th March 2018. Mr Cody submitted that any written submissions which had earlier been provided to the Court by the Complainant were no longer being relied upon by him. The Court asked Mr Cody to provide authority for the proposition that a complaint under the Act which had been made to and decided upon by an Adjudication Officer of the Workplace Relations Commission under Section 41 of the Workplace Relations Act, 2015, and which decision was now the subject of the within appeal, could be withdrawn by the Complainant who was not the Appellant. Mr Cody was unable to provide any such authority. Mr Cody was similarly unable to clarify the legal or statutory meaning of a statement that such a complaint was withdrawn in the face of an Appeal by another party of a decision on the original complaint made by an Adjudication Officer in exercise of her jurisdiction under Section 41 of the Act of 2015. Mr Cody did submit that subsection 2 of Schedule 2 of the Act established the jurisdiction of the Court, in exercise of its jurisdiction under Section 44 of the Act of 2015, to set aside a decision of an Adjudication Officer. In answer to a question from the Court, Mr Cody submitted that the Court could make a decision under that section to set aside a decision of an Adjudication Officer on the basis that the Appellant and Complainant had agreed that the Court should do so, and without hearing from the parties on the substance of the complaint which was the subject of the within de-novo hearing. In making this submission Mr Cody clarified that the Complainant did not accept that the events giving rise to the complaint did not constitute a breach or breaches of the Act. Summary position of the Appellant The Appellant made no submission to the Court which raised any issue with the fact that the Complainant did not attend the hearing of the Court but that he had instead chosen to be represented by a solicitor appearing alone. The Appellant submitted that the Court could, on the basis of an agreement between the Appellant and the Complainant, set aside the decision of the Adjudication Officer. The Appellant submitted that no breach of the Act had occurred and relied upon its extensive written submissions which had been provided to the Court in advance of the hearing and which comprehensively addressed matters which had earlier been contended by the Complainant to amount to penalisation of him in contravention of the Act. The Appellant asked the Court to take those submissions as read and made an oral submission summarising those written submissions. The Law Section 12(1) of the Act provides:-
Discussion and conclusion The Appellant and the Complainant set out to the Court that they had agreed, prior to the hearing of the Court, that the Court should set aside the decision of the Adjudication officer giving rise to the within appeal. No authority was proffered to the Court to support a proposition that, without hearing the substance of the matter before the Court or reaching a conclusion as to whether a breach of the Act had occurred, this Court is at large to set aside a decision of an Adjudication Officer by reason of the jurisdiction conferred upon it by the second schedule of the Act. The appeal before the Court was not withdrawn by the Appellant. The Second Schedule of the Act in relevant part provides as follows:
The parties, at the hearing, made plain that there was no consensus between them as to whether the Complainant had been penalised within the meaning of the Act. The Appellant rejected the proposition that penalisation had occurred, and the Complainant’s legal representative confirmed that he did not accept that penalisation had not occurred. The observation of O’Donnell J as he then was in Magdalena Glegola and the Minister for Social Protection, Ireland and the Attorney General [IESC} {2017/56], highlights the obligation resting upon a body such as this Court to satisfy itself as to the substance of a matter coming before it on appeal from a decision of an Adjudication officer and is, in the view of the Court, while not exactly on point, instructive when applied to the circumstances of the within appeal:
The Court concludes that no jurisdiction is conferred upon it by the Act to set aside without adequate enquiry a decision of an Adjudication Officer made under Section 41 of the Act and that no basis exists to accept the proposition of the legal representatives of the parties that the within appeal should be decided without the Court satisfying itself as to the substance of the appeal. The Court has been asked by the Complainant’s representative to note that he has withdrawn his original and statutorily decided complaint to the Workplace Relations Commission and has been asked to consider that to be a significant matter. The Court at its hearing asked the Complainant’s representative to clarify the legal or statutory meaning of a statement to the effect that the Complainant was withdrawing his original complaint which has been the subject of a statutory decision by an Adjudication Officer. No clarity as regards the legal or statutory meaning of the statement of the Complainant’s representative was provided to the Court nor any authority proffered for the proposition that such a statement could be relied upon by this Court to set aside a decision of an Adjudication Officer made under Section 41 of the Act of 2015. The Court notes in this context that the Workplace Relations Commission became functus officio upon issuance of a decision on the original complaint by an Adjudication Officer and that no submission has been made to the effect that the Complainant had communicated his subsequent withdrawal of his complaint to the Commission or that any response accepting such a withdrawal had been received by him from the Commission. Similarly, no submission has been made that the Commission or the Adjudication Officer has cancelled, withdrawn or otherwise quashed its decision giving rise to the within appeal. In these circumstances, the Court concludes that the Complainant’s statement that he has withdrawn his original complaint to the Workplace Relations Commission after that complaint was adjudicated upon by an Adjudication Officer does not provide jurisdiction to this Court to set aside the decision of the Adjudication Officer without adequate enquiry into the substance of the appeal before the Court. At its hearing the Court advised the parties that it would hear them both in relation to the substance of the appeal. Neither party raised any objection to that approach. The Complainant made no submission on the substantive matters when invited to do so and clarified that any earlier submitted written submission on the substance of his complaint or the within appeal was not to be relied upon. The Appellant asked the Court to take its earlier written submissions as read and asked the Court to rely upon those submissions and an oral summary provided to the Court at the hearing and to decide that the Complainant was not penalised within the meaning of the Act. When the parties had completed their response to the Court’s invitation to set out their submissions to the Court, they were each invited to make comment, observation or submission on each other’s submissions and neither party chose to avail of that opportunity. The Appellant indicated that he would be in a position to call the evidence of five witnesses but ultimately decided, in the circumstances of the appeal, not to do so. The Complainant gave no indication of a wish to call any witness to place evidence before the Court. In order to determine a complaint of penalisation under the Protected Disclosures Act 2014 it must first be established that a protected disclosure had been made and in the within matter. It is common case that the Complainant made a protected disclosure within the meaning of the Act on 7thMarch 2016. In order for the Complainant to succeed in his complainant under the Act, the Court must decide if the Complainant was penalised for having made such a protected disclosure. The provisions of the Act regarding penalisation are broadly similar to those provided in the Safety Health and Welfare Act, 2005 (the Act of 2005). As this Court pointed out in a decision made under that Act in O’Neill v Toni and Guy Blackrock Limited [2010] E.L.R. 21, it is clear from the language of Section 27 of the Act of 2005 that 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 Act of 2005. 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, 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. The principles enunciated in that decision can be applied to the within complaint under the Act. Thus, the Complainant in the within matter is under the burden of establishing that any detriment which he alleges amounts to unlawful penalisation under the Act, occurred because he had made a protected disclosure. In essence, that the detriment would not have occurred but for a protected disclosure having been made. The Complainant before the Court provided no submission or evidence that any detriment had been suffered by him or that he suffered any detriment because he made a protected disclosure under the Act. The Court notes that earlier written submissions made by the Complainant had contended that he had suffered detriment because he had made a protected disclosure, but his representative confirmed to the Court at its hearing that those earlier submissions were no longer being relied upon. The Appellant made comprehensive submissions detailing certain events which had occurred and which had earlier been contended by the Complainant to amount to penalisation of him within the meaning of the Act and was prepared to proffer the evidence of five witnesses to the Court. However, no element of the submission of the Appellant was in contest before the Court and no submission of the Appellant setting out purported facts were contested to the degree that the Court would require sworn evidence in order to establish facts in controversy. Having regard to the submissions of the parties at its hearing therefore, the Court concludes that the Complainant has failed to discharge the burden resting upon him to establish that he had suffered a detriment at all or that any detriment amounting to penalisation within the meaning of the Act had been suffered by him. The Court is therefore unable to conclude that any case has been made out by him at all which would allow the Court to consider whether any detriment suffered by the Complainant could reasonably be considered to have been suffered because he had made a protected disclosure. In those circumstances, the Court concludes that the Complainant was not penalised within the meaning of the Act and that the within appeal must succeed. Decision The Complainant has failed to make out any complaint before the Court of penalisation within the meaning of the Act. The within appeal succeeds and the decision of the Adjudication Officer is set aside. The Court so decides.
NOTE Enquiries concerning this Determination should be addressed to Cathal Nurney, Court Secretary. |
