FULL RECOMMENDATION
PARTIES :
DIVISION :
1.Appeal of Adjudication Officer Decision No(S) ADJ-000069766, CA-00009465-001 This is an appeal by Professor Robert Galavan (‘the Complainant’) from a decision of an Adjudication Officer (ADJ-00006976, dated 20 May 2020) under the Protected Disclosures Act 2014 (‘the Act’). Notice of Appeal was received by the Court on 25 June 2020. The Court heard the appeal in a virtual courtroom over a number of sittings on the following dates: 5 March 2021; 13 May 2021; 14 May 2021 and 17 November 2021. Chronology of Key Events 2007: Complainant appointed as lecturer in the University and played a key role in founding the School of Business of which he subsequently became Head of School; 2011: Complainant appointed as the first Professor of Business in the School of Business; August 2012: Complainant’s five-year term as Head of School ended; Complainant commenced sabbatical leave for one academic year; September 2013: Complainant returned to his post of Professor of Business and Chair of Strategic Management in the School of Business; March 2014: Professor P McNamara appointed new Head of School and, therefore, the Complainant’s line manager; May to October 2014: Complainant raised his concerns about governance and health and safety with new Head of School; 11 November 2014: Professor McNamara raised a formal grievance against the Complainant that led to an Investigation into the Complainant; 1 March 2016: Respondent implements its Protected Disclosures (Whistleblowing) Policy; 18 March 2016: Conal Devine & Associates issue Report into issues raised by Professor McNamara; 22 August 2016: Complainant formally notified by letter from the President of the latter’s decision to second him from the School of Business to the Kennedy Institute; 9 September 2016: secondment commenced; 1 February 2017: first indication from the Complainant’s Trade Union that he intended to refer a complaint to the Workplace Relations Commission under the Protected Disclosures Act 2014; and 1 February 2017: Complaint under the Act received by the Workplace Relations Commission. Complainant’s Submission The Complainant’s case is that he raised concerns about breaches of governance and health and safety obligations in the School of Business in the period May 2014 to October 2014; in raising those concerns he submits he made a number of protected disclosures within the meaning of the Act. He further submits that he was penalised by the Respondent for having made those protected disclosures. He alleges that the detriment which constitutes the alleged penalisation consists of two related elements: (i) a protracted investigation into his conduct; and (ii) his indefinite and ongoing secondment from the School of Business to an unspecified role in the Kennedy Institute with effect from August 2016. The effect on his standing in the academic community and on his reputation has been devastating,he submits. The Respondent’s Submission The Respondent denies that the issues raised by the Complainant with Professor McNamara in relation to marks and standards, continuous assessment and numbers attending certain lectures at the start of term were raised by him as protected disclosures or indeed constitute protected disclosures within the meaning of the Act. It is submitted that the Complainant, in referring his complaint to the Workplace Relations Commission under the Act, retrospectively sought to recharacterize those issues as protected disclosures. The University also denies that any detriment was visited on the Complainant for raising legitimate issues of concern. He was seconded from the School of Business to the Kennedy Institute following a very thorough independent investigation by Conal Devine & Associates that established the extent of the interpersonal difficulties that had developed between the Complainant and the Head of School and the hugely negative impact of that on the operation of the School. The choice of location for the Complainant’s secondment, in the University’s submission, was perfectly reasonable and cannot be considered a detriment to the Complainant having regard to the level of his prior engagement with the work of the Institute and the fact that his title, status and salary were not impacted. The Complainant’s Evidence The Complainant told the Court that during 2014 he raised a number of issues regarding academic governance within the School of Business in relation to: proposed changes to the continuous assessment process; the legal right of students to challenge their results by way of appeal; and the amendment of School policies and processes. He gave detailed evidence to the Court in relation to his understanding of the bicameral system of governance within the University, comprised of the Academic Council on the one hand and the President and Executive Council on the other. The former oversees academic delivery and ensures academic freedom is respected. It adopted the “Framework for Academic and Administrative Leadership and Management of Academic Departments and Schools” on 23 October 2006. It is the Complainant’s submission that paragraphs 8 and 9 of that document place an obligation on each Head of School to consult with relevant Subject Leaders and Professors in the School, and with any School Committees in place, with regard to the management of the School “in its teaching and learning, research, personnel, administrative, financial and other activities”. He further submits this requirement is consistent with section 27(1) of the Universities Act 1997 whereby the control over a university’s academic affairs is vested in the Academic Council. The Complainant told the Court that the issue of revising the School’s continuous assessment policy was up for discussion at a School meeting in May 2014 and a decision was taken to establish a sub-committee to examine the issue. However, according to the Complainant, no report from the sub-committee was subsequently presented to the School but, notwithstanding this, Professor McNamara issued a unilateral direction on 30 June 2014 instructing staff to implement a revised continuous assessment policy. Details of email communications from the Complainant to Professor McNamara and of a face-to-face meeting between the Complainant and Professor McNamara on 1 July 2014 were opened to the Court. The implementation of the new policy was deferred. A second directive issued from Professor McNamara in September 2014. The Complainant raised concerns about a number of discrepancies he had noted in the revised proposed continuous assessment scheme both directly with Professor McNamara and at a School meeting on 6 October 2014. At the beginning of the 2014-15 academic year, the Complainant was advised that over-crowding was taking place in a particular lecture theatre during lectures delivered by a junior lecturer in the School. The latter had reported the matter to the School’s administrative staff and had indicated they wanted it placed on the agenda for discussion at a School meeting on 6 October 2014. However, it had come to the Complainant’s attention that Professor McNamara had decided that the matter should not be on the agenda for that meeting. The Complainant told the Court that he, therefore, raised the matter directly with Professor McNamara on 6 October 2014 and repeated the junior lecturer’s concerns about her own health and safety and those of the students in attendance at her lectures. The Complainant said in evidence that by 6 October 2014 he had become frustrated with Professor McNamara’s apparent unwillingness to address the governance and health and safety issues that he had raised with him. He, therefore, proposed to Professor McNamara that they jointly engage with the University’s Mediation Service to facilitate a resolution of their differences. His evidence is that Professor McNamara agreed to this but didn’t follow through and, in fact, referred a formal grievance against the Complainant on 11 November 2014 concerning the latter’s behaviour and its impact on him. By letter dated 3 December 2014, the then-President of the University - Professor Philip Nolan -wrote to the Complainant inviting him to a preliminary meeting, in accordance with Statute K2(a) of the University’s Statutes, to discuss the matters raised in Professor McNamara’s letter of 11 November. The Complainant said that this led to a meeting with the President on 9 December 2014. However, he had not been provided with a copy of Professor McNamara’s letter of complaint in advance of the meeting and was, therefore, at some disadvantage in setting out his position. A subsequent meeting took place, he said, in January 2015 at which the President, the Director of Human Resources and Professor McNamara were present. The Complainant had a number of subsequent contacts with the Director of Human Resources in April and June 2015. Porfesssor McNamara, he said, had confirmed that he did not wish to engage in mediation with the Complainant and wanted a formal investigation undertaken into his complaints against him. The University engaged Conal Devine & Associates to conduct this investigation in accordance with Chapter IV of the University’s Statutes. The Devine Report issued in March 2016. Mr Devine makes the following observations at paragraph 7.5.2 of his Report: “The reviewer notes that the initiative for the alteration to the continuous assessment policy originated with the academic staff with responsibility for undergraduate programmes. It is understood that this was significantly motivated by concerns regarding the time/resources required to manage the then existing Continuous Assessment Policy. The reviewer would observe that the Head of School’s actions can be objectively characterised as engagement in a consultative process with academic staff in the School regarding a policy, following the receipt of feedback of the subcommittee, and the invitation to staff to submit additional comment. Having considered those varying views, Professor McNamara communicated his decision that the dual approach be adopted. Professor Galavan continued to raise his objections to this policy both in emails circulated to the School, following the decision, and at the October 2014 School meeting. The Reviewer notes that Professor Galavan had strongly held views regarding the decision made and the possible consequential impact of two Continuous Assessment systems operating in parallel. While Professor Galavan had every right to articulate those views, there is a balance to be achieved between such legitimate articulation and actions which could reasonably be interpreted as questioning the authority of the Head of School. It is also noted that Professor Galavan, given his role as a senior academic and former Head of School, knew or ought to have known, that the impact of his actions in effectively questioning the rationale for the decision by the Head of School, would have been potentially adverse to Professor McNamara and his standing in the school as Professor and Head of School.” In the penultimate paragraph (par. 8.1.3) of his Report, Mr Devine recommended that the Parties avail themselves of a facilitated/mediated process “to assist in re-building, where necessary, and fostering collegiate relationships”. The Complainant told the Court that he had a further meeting with Professor Nolan on 13 May 2016 to discuss the Devine Report’s findings. He says that he expressed his agreement with the suggestion made by Mr Devine in paragraph 8.1.3 regarding mediation and team building. A further meeting took place with the President and the Director of Human Resources in June 2016 at which the President told him, he said, that the only manner in which the dispute between the Complainant and Professor McNamara could be resolved was by moving the Complainant to the Kennedy Institute for a period of three years. The Complainant was accompanied at this meeting by his Trade Union representative. By email dated 21 June 2016, the Director of Human Resources communicated the President’s decision in this regard to the Complainant. In his email to the Director, appended to her email to the Complainant, the President advised the Director: “I have communicated to both parties my decision, arrived at under Statute K.29(v) of the University to second Professor Galavan to the Edward M Kennedy Institute, having formed the view, without finding fault on either side, that the only effective means to resolve the dispute is to have the two parties work in separate parts of the University for a period of time.” The President formally confirmed the above decision in a letter to the Complainant dated 22 August 2016 and advised him that his secondment would take effect from 9 September 2016. Under cross-examination, Mr Power SC put it to the Complainant that he had not used the words ‘protected disclosure’ to characterise his 2014 complaints until February 2017. The Complainant accepted that this was the case but that expressing himself in legal terms was not his forte and he didn’t have the necessary language to do so until he had obtained advice about the events of 2014 and their aftermath. The Complainant did, however, accept in response to a question from Counsel that he had had the assistance of his trade union, IFUT, throughout the Devine process. Counsel next referred the Complainant to the complaint form he submitted to the Workplace Relations Commission on 1 February 2017 in which he had made reference to ‘a serious concern’ regarding his own personal health and safety. Counsel put it to the Complainant that he had not once made a reference to this issue in his evidence-in-chief to the Court and nor had it been referred to in the Complainant’s written submissions to the Court. Counsel also put it to the Complainant that there had been no reference to governance issues in his Workplace Relations complaint form. Counsel, continuing in the same vein, next put it to the Complainant that there had been no reference to his relationship with the Head of School in his submissions to the Workplace Relations Commission but this had become a major part of his case on appeal before this Court. Counsel suggested to the Complainant that there were significant differences between his case at first instance and his case on appeal in so far as there had been three issues raised before the Workplace Relations Commission (class size, changes to the continuous assessment system and health and safety) but the health and safety issue had not been mentioned at all in his submission to the Labour Court. Likewise, Counsel suggested that the Complainant’s second submission to the Workplace Relations Commission had raised a further issue – regarding the academic integrity of certain degree awards – but this again was not raised before the Court. Counsel then asked the Complainant about the penalisation aspect of his claim. The Complainant accepted that he had not alleged he was being penalised when the Devine process was under way. However, the Complainant went on to say, in reply to Counsel, that his position now is that the use by the Respondent of the Statute K process was unfair to him and denied him his rights, including his right of appeal. He also said the terms of reference of the Conal Devine investigation were flawed. In answer to Counsel, he accepted that he had not make an allegation of penalisation when he received the Devine Report in March 2016. Counsel referred the Complainant to paragraph 54 of the Complainant’s submission to the Court which deals in detail with the meeting attended by the Complainant, Professor McNamara, the President and the Respondent’s Director of Human Resources in early 2015 (on 30 January according to the Complainant; on 17 February according to the Respondent). In paragraph 54, the Complainant informed the Court that at that meeting he had “also offered to step away from operational issues and to avoid attending School meetings”. Counsel put it to the Complainant that his proposal in this regard was surely an acknowledgement on his part of the existence of an interpersonal dispute between him and Professor McNamara and the fact that they couldn’t work together. The Complainant said he disagreed and that what was happening, in his opinion, was that Professor McNamara was choosing to interpret his (the Complainant’s) issues in a particular way. Counsel referred the Court to a letter from IFUT to Mr Conal Devine dated 1 March 2016 in which his Union makes reference to “relationship difficulties at the School of Business”. Counsel noted that the letter did not make reference to a protected disclosure or to penalisation. Counsel further put it to the Complainant that his offer to stand back from School meetings was inconsistent with his claim that the issues he had raised concerns about were not being discussed at School meetings. When asked by Counsel about his response to the Devine Report, the Complainant said that he had been willing to work with it and particularly to attempt mediation with Professor McNamara as had been recommended by Mr Devine and to engage in team building. However, he said, he was not happy with the Report’s findings because he says he had been told there would be no findings. Counsel next referred the Complainant to a letter dated 6 October 2016 from IFUT to the Respondent’s Director of Human Resources which seeks to challenge the Respondent’s decision to second him to the Kennedy Institute and requests mediation. Counsel put it to the Complainant that there is no reference made in this letter to his having made a protected disclosure or having been penalised as a consequence of having done so and that the first reference on behalf of the Complainant to such matters occurs in his complaint form to the Workplace Relations Commission in February 2017. Counsel referred to a letter dated 2 March 2017 from the Director of Human Resources to IFUT in which Ms McCarthy writes,inter alia: I now understand that Professor Robert Galavan has made a complaint under the Protected Disclosures Act to the WRC. I am not aware that any issues arise whatsoever under the Protected Disclosures Act and I attach a copy of the University’s policy in that regard. Further, I am unaware that Professor Galavan, at any stage, had and/or raised any issues on foot of this policy.” In response, the Complainant said that he had raised his protected disclosure with his line manager in writing and verbally with the President. Counsel observed that the Complainant was submitting that he had raised his alleged protected disclosure with the very person with whom he was alleging was responsible for the issues about which he was complaining. The Complainant told the Court that the penalisation he complains of commenced in August 2016 when he was seconded to the Kennedy Institute. He again denied that his relationship with Professor McNamara had broken down by summer 2016; he said that he had continued to work normally until ‘well into 2016’. The Complainant also said that he did not accept that the President of the University had the authority to second him to the Kennedy Institute. Counsel noted that this was the first occasion on which the Complainant made this claim. Counsel referred the Complainant to the document included in his own bundle of papers entitled “Framework for Academic and Administrative Leadership …”, in which paragraph 4 of the section headed ‘Schools’ provides: “The President may, from time to time, assign members of the staff of the University to a School, Academic Department/Centre or Research Institute”. Counsel referred the Complainant to various emails from himself on different dates in 2014, also included in his own bundle, in which he refers to himself in his ‘signature section’,inter alia, as “Academic co-Director Edward M Kennedy Institute for Conflict Intervention”. Counsel also reminded the Complainant that he had been involved in establishing the Kennedy Institute in 2011 and that he is named in theKennedy Institute Medium Term Plan(May 2016) as one of the two leaders of a funded research project calledOn Improving the Effectiveness of Capabilities in EU Conflict Prevention (Horizon 2020).Counsel noted that paragraph 7.1.1 of the Devine Report had noted that “In February 2009, the School of Business and Law was formed with three departments: Management, Design and Innovation, and Law, Mediation and Conflict Resolution” and that a Master’s programme in dispute resolution had been introduced when the Complainant was Head of School. Counsel reminded the Complainant that he had authored a Working Paper in August 2015 with the titleUnderstanding Resources, Competences, and Capabilities in EU Common Security and Defence Policy. The Complainant told the Court that he had participated in a project in relation to Afghanistan run through the Kennedy Institute in early 2017 and had completed thirty-two days’ work as part of that project. The cross-examination then moved to the issue of the large class attending Dr O’Connor’s lectures at the start of the 2014-15 academic year. On 3 October 2014, Dr O’Connor sent an email to Professor McNamara expressing her concern that the lecture theatre assigned for certain of her lectures could not accommodate the numbers of students registered to take her modules. The Complainant’s case is that he raised a protected disclosure with Professor McNamara about this matter on 6 October 2014. Counsel put it to him that the matter was discussed at School level and was in fact resolved by 8 October at the latest as acknowledged by Dr O’Connor in an email of that date to Professor McNamara. The cross-examination of the Complainant resumed on 14 May 2021. Counsel referred firstly to paragraph 89 of the Complainant’s submission to the Labour Court in which the Complainant complains that the Adjudication Officer, in his opinion, had not properly examined the content of his protected disclosures “and further failed to comprehend the significance of the issues being raised by the Complainant from a governance perspective and in particular the apparent attempt by Professor McNamara to remove control for academic affairs away from the remit of the Academic Council contrary to the provisions of the 1997 Act”. Counsel put it to the Complainant that this was not an issue he had raised in his complaint form or written submission to the Workplace Relations Commission and neither had it been addressed in the Devine Report. Nevertheless, in Counsel’s words, it had become “a core issue”, for the first time, in the Complainant’s appeal to this Court. The Complainant said that the matter had been dealt with in the Devine Report but that Mr Devine hadn’t fully appreciated the requirement for consultation within the School. Counsel put it to the witness that his evidence was not consistent with the observations and recommendations of Mr Devine at paragraph 8.1.1 of the Report where he states in relevant part: “In order to ensure that there is no ambiguity around the ultimate decision making (sic) role of the Head of the School, and the School meeting being part of the consultative process taken into account by the Head of School in decision making, it is suggested that Terms of Reference would be drawn up for future School meetings. Those Terms of Reference should clearly underscore the decision making (sic) role of the Head of School and should also have regard to the consultative role of school meetings as for example envisaged in paragraph 10 of the 2006Framework for Academic Leadership and Management of Academic Departments and Schools.” Counsel next referred the Complainant to paragraph 5.2.24 of the Devine Report which records the Complainant discussing his own style or approach as Head of School which he had said was to try to seek consensus on issues in relation to which there were different viewpoints amongst academic staff. The Complainant had gone on to tell Mr Devine that in raising the issues of marks and continuous assessment with Professor McNamara in 2014 he had been trying to bring about a consensus in relation to a minimum standard but what they had ended up with in the School (as a consequence of Professor McNamara’s decisions) was two different models of continuous assessment “with a gap between them”. Counsel put it to the Complainant that Professor McNamara had referred this issue to the Registrar and had furnished the Registrar’s reply to the Complainant. Counsel also put it to him that he hadn’t raised the issue with the Registrar and nor had he raised it at Academic Council of which he was a member. Evidence of Associate Professor Emeritus Paul Donovan The witness gave an outline of his experience as an associate professor of business in the School of Business in the Respondent University between September 2009 and his retirement in February 2021. He told the Court that he had been interim Head of School in 2012 after the Complainant’s term had ended and before Professor McNamara took up his appointment. He spoke about the role of the Academic Council in setting academic standards within the University. He said he attended meetings of the Academic Council only rarely during the period he was interim Head of School. His evidence was that the Complainant and Professor McNamara had very different styles as Head of School; the former he described as a consensus-seeker and the latter as a decision-maker. He continued in his evidence to say that he had observed the interactions between both of them between 2014 and 2016 and, in his opinion, they had continued through that period to function as two professionals. He also said that the School of Business had continued to thrive during that period and didn’t come to a halt because of any interpersonal issues that may have arisen between the Complainant and Professor McNamara. The witness said he disagreed with the observations made by the President in his letter of 22 August 2016 suggesting that the dispute between the men had impacted negatively on the effective and efficient operation of the School of Business. He told the Court that he had never heard of the Statute K mechanism being invoked by the Respondent other than in the Complainant’s case. His evidence then turned to the continuous assessment issue that had arisen in 2014. He said he had been a member of the sub-committee established to look into this matter and that the sub-committee had not reached a consensus in relation to it. Nevertheless, he said, a decision was taken to change the approach to continuous assessment within the School shortly after the sub-committee had concluded its work. The witness said that he had reservations about implementing the proposed changes as the colleagues who had made the initial proposal to do so had left the School meeting before the issue came up for discussion. He said he sent an email to colleagues on 30 June 2014 (copy opened to the Court) in which he recommended that any changes be postponed until a full discussion could take place at the next School meeting, the following October, “as there [was] still fundamental disagreement in the wider team with respect to these issues”. The witness explained that the hybrid arrangement to continuous assessment was adopted at that time in order to satisfy different constituencies. Under cross-examination, the witness said that, in his opinion, the establishment of the sub-committee amounted to an abuse of procedure as he would have expected the sub-committee’s report to have been presented to the wider group for discussion before any final decision in relation to reforming the continuous assessment arrangements was made. This did not happen, he said, as the Head of School made a unilateral decision to adopt the new procedures long before the School meeting in October 2014 took place. Evidence of Professor Aidan Mulkeen The witness is Vice-President Academic, Registrar and Deputy President within the Respondent University and has been in this role for over eight years. Heoutlined the composition and functions of the Academic Council. He told the Court that it is the governance body that has oversight of academic affairs and comprises approximately seventy members (including professors, heads of school,exofficiomembers and student representatives). The Academic Council, according to the witness, approves the rules in relation to ‘Marks and Standards’ that are applied throughout the University. That being the case, he said, a School has limited decision-making autonomy in this regard and must operate within the overarching framework established by the Academic Council unless the School has sought and obtained an exemption. Some schools for example, he said, operate different rules in relation to repeat examinations where they have demonstrated a good reason to do so. The witness told the Court that - in his capacity as Registrar - he had provided detailed replies to Professor McNamara in relation to the queries that the Complainant had raised within the School of Business about the rules that apply to continuous assessment. The witness confirmed that his advices had been reproduced in an email dated 16 October 2014 (and opened to the Court) from Professor McNamara to the Complainant (and carbon copied to colleagues in the School). He said that it had been open to the Complainant to appeal the Head of School’s decision regarding the continuous assessment arrangements to the Registrar but he had not availed himself of the opportunity to do so. According to the witness, approximately two-thirds of the modules taught across the University apply the model of continuous assessment implemented by Professor McNamara. One third of modules taught have an additional component in which the student must achieve a pass in order to pass the module overall (e.g. in chemistry, a student must pass the practicals). The witness confirmed that he had been a member of the Academic Council in 2014. He said that there had been no appeals from students in the School of Business in either 2014 or 2015 arising from their continuous assessments and, in his view, the changes implemented by Professor McNamara made things easier for students. The witness’s evidence then turned to the issue of class sizes and overcrowding in certain lecture halls. He told the Court that the curriculum is very flexible and allows students to change the modules for which they are registered during the first four weeks of the semester. This means, he said, that students often sit in on lectures in modules for which they are not registered. Sometimes, it becomes necessary to hold the same lectures in two different venues to facilitate the numbers attending at the start of the semester if a suitably large lecture theatre is not available. The witness said that the start of the 2014 academic year had been a particularly pressurised time in the University as numbers were expanding and new buildings that were being developed had not been completed. The University, therefore, had to obtain the temporary use of the Aula Maxima from St. Patrick’s College to facilitate the increased numbers. Business, according to the witness, was the discipline with the largest student cohort and a number of business modules had to be split across two venues. He said that Professor McNamara had raised the specific issue that had arisen in relation to Ms O’Connor’s module and arrangements were made to relocate her lectures to an alternative venue that could accommodate the numbers attending. He also told the Court that neither Professor Galavan nor Professor Donovan had brought a complaint to him about this issue. Finally, in direct evidence, he said Professor Galavan had never complained to him as Registrar that he had been subjected to inappropriate treatment for having raised the issues he did within the School of Business. Under cross-examination, the witness said that the issue of appropriate accommodation for the large groups attending Ms O’Connor’s lectures was dealt with prior to 6 October 2014. In fact, he said, it was sorted out within twenty-four hours of Professor McNamara’s bringing it to his attention. He also said that Professor McNamara had approached him about the use of a sub-committee within the School as an appropriate method of engaging in consultation about making changes to the School’s approach to continuous assessment. The witness said that, in his view, there had been more consultation about this issue than many others (in the University) and it had dragged on for several months and there came a point when students had to be told definitively about what had been decided. In response to questions from the Court, the witness said that in his opinion neither of the two issues Professor Galavan had complained about – the proposed change to continuous assessment of students in the School of Business and the potential overcrowding of lecture halls at the start of a semester – constitute wrongdoings. It was also his view that the President of the University had serious concerns about the operation of the School of Business following receipt of Professor McNamara’s letter in November 2014. In the witness’s opinion, the difficulties arose from the interaction between two strong characters and the tensions between their respective approaches; one who had been there for a number of years and a new person who came in as his successor as Head of School. In his view, Professor McNamara was in order in how he proceeded to run the School following his appointment. He also told the Court that he was aware that Statute K had been invoked in the case of another member of the academic staff but he didn’t have the details as the process is confidential. Finally, the told the Court that it is not unusual for an academic who is seconded to a research institute not to have any teaching obligations. Evidence of Rosaleen McCarthy The witness has been Director of Human Resources in the Respondent University since 2011. Counsel referred her firstly to Professor McNamara’s letter of 11 November 2014 to the President of the University, Professor Philip Nolan, lodging a grievance against the Complainant and alleging that the Complainant’s behaviour had displayed a “disruptive, erratic and inquisitorial approach to policy formation and implementation, governance of academic, managerial and financial issues in the school”. Professor McNamara concluded his letter of grievance by requesting “the appropriate authority of Maynooth University formally investigate these issues and seek to arrive at an appropriate managerial solution”. The witness told the Court that the University does not have an approved grievance procedure in place and that the alleged policy opened by the Complainant was in fact a draft policy only and still subject to ongoing discussions with the Unions. In those circumstances, she said, Statute K is the only remedy open to the President in circumstances such as those that arose between Professor McNamara and the Complainant. She told the Court that Statute K is rarely used and only in cases of interpersonal disputes between senior figures in the University. Counsel referred the witness to the second meeting that took place between the parties following the receipt of Professor McNamara’s grievance letter regarding the Complainant. The Complainant, in his written submission, had said this meeting took place on 30 January 2015 and that, in the course of that meeting, he had reiterated his concerns about governance in the School of Business under Professor McNamara’s leadership. The witness said that her recollection was that the meeting took place on 17 February 2015 and had focused on the management and administration of the School of Business – ‘how the school was being run’ - as well as the interpersonal difficulties that had arisen between the Complainant and Professor McNamara. The purpose of the meeting, she said, had been to attempt to resolve that interpersonal dispute informally within the existing structure of the School of Business. She expressly told the Court that the Complainant had not made any declaration at this meeting that a wrongdoing had occurred. According to the witness, the Respondent adopted its Protected Disclosures Policy in March 2016 following consultation with the Trade Unions. The witness’s evidence then moved to the meeting she had with the Complainant on 1 April 2015. The Complainant, in his written submission and evidence, had stated that he told the witness at this meeting that he had done nothing wrong “other than challenge the Head of School in respect to what he considered to be breaches of legal requirements and duties”. The witness denied that the Complainant had made any such allegation at the meeting with her on 1 April 2015. She said that she had told the Complainant that Professor McNamara was not open to entering mediation with him and that she had suggested - on an informal basis – that an option open to the Complainant would be to move to the Kennedy Institute. In her opinion, she said, this was an obvious option for the Complainant given his existing association with the Institute, however, the Complainant had said he was unwilling to consider such a move. The witness then told the Court that she had written to the Complainant on 26 June 2015 to inform him that the Respondent had appointed Mr Conal Devine to carry out an examination into grievances raised by Professor McNamara to the President of the University. According to the witness, this letter marked the commencement of a formal stage in the process and a move beyond the Respondent’s efforts to resolve matters informally prior to this. It was, she said, the next step provided for under the Statute. The witness said that she also had a telephone conversation with the Complainant on the same date, 26 June 2015, and that he had not made reference to any alleged wrongdoing during the course of their conversation. The witness said that Mr Devine’s report issued in March 2016 at which time the Protected Disclosures Policy was operational. She also said that the Respondent had engaged with the Complainant’s Trade Union – IFUT- throughout the Devine process. Counsel asked the witness about a meeting that took place on 14 June 2016 at which the witness, President Nolan, the Complainant and his Union Representative were present. Her clear recollection, she said, was that the Complainant did not raise any allegation of wrongdoing at this meeting. On 21 June 2016, the witness sent an email to the Complainant and to his IFUT Representative, to which was appended an email from President Nolan confirming his decision, communicated at the meeting of 14 June 2016, as to how he intended to resolve the dispute between the Complainant and Professor McNamara. The witness said she did not receive a reply to this email from the Complainant. The witness told the Court that the President communicated his decision formally to the Complainant by letter dated 22 August 2016 and that IFUT replied on his behalf by letter dated 6 September 2016. The witness said that her reading of IFUT’s correspondence was that it viewed the matter as very much an industrial relations one at this point in time and that there was no indication therein that the Complainant was alleging a wrongdoing or that he had raised a protected disclosure . The letter states,inter alia: “The President’s letter can only be regarded as a unilateral repudiation of Professor Galavan’s entitlements under the Industrial Relations Act 1969 and 1990 and the Safety, Health & Welfare at Work Act 2005 as no use has been made of the industrial relations process or procedures (which includes (sic) a right of appeal) to resolve this matter … As a consequence, we have no alternative but to refer this matter to the Workplace Relations Commission. In the circumstances, we must insist that Professor Galavan’s current working arrangement continues at the School of Business until all industrial relations processes and procedures have been exhausted in this case.” The witness said that, in her reading of it, the letter from IFUT did not disclose an alleged wrongdoing and that, in any event, conciliation before the Workplace Relations Commission is not the forum in which to address a protected disclosure. The witness wrote to IFUT, she said, by letter dated 11 October 2016 offering the Complainant the option to engage with the University in relation to the nature and extent of his secondment to the Kennedy Institute, using the services of an independent mediator. IFUT rejected this offer by letter dated 14 October 2016. The witness then said that she arranged a meeting on 29 November 2016 which was attended by the Complainant, his IFUT Representative, the witness and Mr Cassells from the Kennedy Institute to discuss the Complainant’s potential role there during the period of his secondment. On 21 December 2016, the witness wrote again to the Complainant inviting him to participate in a third-party mediation process to address the issues arising from the President’s decision to second him to the Kennedy Institute. The witness also gave explicit examples in the letter of how she believed the Complainant could “contribute to promoting the Strategic Management advantages of mediation throughout the business and commercial world”. IFUT replied on the Complainant’s behalf by letter dated 1 February 2017. This letter, according to the witness, was the very first indication to the Respondent of the Complainant’s intention to pursue a complaint to the Workplace Relations Commission under the Protected Disclosures Act 2014. The letter does not disclose what the alleged protected disclosure the Complainant suggested gave rise to what IFUT characterised as the Complainant’s “removal from his position without cause and without any mechanism of appeal”. The witness was cross-examined. Counsel firstly referred her to the ‘Grievance Procedure’ document in the Complainant’s bundle. The witness said that this document was not related to a ‘live’ policy although it may have appeared on a website and was taken down for that reason by the witness. Counsel then referred the witness to the ‘NUIM Policy and Procedures for the Protection of Staff against Workplace Bullying, Harassment and Sexual Harassment’. The witness confirmed that this was a live policy document but was under review. Questioning then turned to Professor McNamara’s complaint letter. Counsel asked whether the witness understood this to have been a complaint of bullying. She replied she hadn’t but considered it had raised an issue of interpersonal difficulties between Professor McNamara and the Complainant. Counsel opened Statute K and suggested to the witness that the grievance or complaint that Professor McNamara had raised was, in essence, an industrial relations dispute which should not have been dealt with under Statute K. The witness said that the only occasion on which Statute K had been deployed during her tenure was in the instant case but that she was aware of other disputes that had been resolved through intervention by the President of the University. Counsel asked the witness to identify where, in Chapter IV of Statute K, the Conal Devine process was provided for. The witness said it comes under Paragraph 2(c)(v): “The President shall consider any such request for assistance within a reasonable time and, if he or she considers it appropriate ... having conducted such inquiries as he or she considers necessary may decide … to take such other measures as he or she considers appropriate”. There was then some discussion about the terms of reference of the Conal Devine process as outlined in paragraphs 1.1.4 and 5.2.13 of the Report. Mr Power SC redirected his witness. The witness told the Court that the Complainant had freely entered into the Devine process. She said that there was no grievance procedure in place in the University at the time and this was a factor in the University invoking Statute K2. She also said that the Complainant raised no objection to the process that was followed arising from the fact that he did not have any input into the choice of investigator. Likewise, she said, Professor McNamara had no input into choosing Mr Devine. It was the University’s choice. The witness confirmed that the Complainant had not expressed any dissatisfaction to her in relation to the terms of reference for the Devine investigation and that he had stayed with the process and had been represented throughout it by IFUT. Finally, Mr Power SC asked his witness why the Complainant had been provided with the University’s Protected Disclosures Policy when the issues he had raised had already been the subject of an investigation. The witness said the policy had been provided to the Complainant lest he wished to raise a protected disclosure, however, nothing was received from him in response. Discussion and Decision Section 5(1) to (3) of the Act provides: “5. Protected disclosures (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.” In his complaint form to the Workplace Relations Commission, the Complainant stated that he: “raised issues of wrongdoing with the University Mediation Services, Head of School, President and Director of Human Resources involving serious concerns he had over his personal health and safety and that of others, due to the behaviours of his manager”. Notwithstanding the above formulation of his claim, the case advanced by the Complainant before the Workplace Relations Commission and before this Court is that he raised a series of protected disclosures in relation to governance matters and health and safety concerns with Professor McNamara in the period May to October 2014. The Complainant’s protected disclosures, he told the Court, are extensively documented in the email exchanges that took place in that period between the Complainant and Professor McNamara and which were opened to the Court. The Complainant says that they demonstrate his reasonable belief that the Head of School had failed to comply with his obligation to consult within the School in relation to matters of governance, including marks and standards. The Complainant accepts that he did not use the words ‘protected disclosure’ in relation to his complaints at the time as the Act was only newly enacted and it took a period of time for people to become familiar with its provisions. The Respondent, on the other hand, submits that it only learned of the Complainant’s alleged protected disclosures for the first time on 1 February 2017 in correspondence from IFUT, some seven months after the President’s decision to second him to the Kennedy Institute. By this time the Respondent’s Protected Disclosures Policy had been in place for some eleven months and the Complainant did not avail himself of it at any stage. The case being advanced on behalf of the Respondent is that the Complainant’s allegation that it penalised him by seconding him to the Kennedy Institute for having raised a number of protected disclosures does not stand up in circumstances where it had no understanding before February 2017 that the issues he raised internally within the School of Business in 2014 were characterised by the Complainant as protected disclosures. The Complainant submits that section 5(2) creates a presumption that his complaints constitute protected disclosures as he had ‘a reasonable belief’ that they ‘tend[ed] to show one or more wrongdoings’. Professsor Mulkeen gave convincing and reasoned evidence to the Court which, in the Court’s judgment, strongly rebuts the presumption that the Complainant is seeking to rely on. Most importantly, the witness said that he been told by Professor McNamara (when the latter sought clarification from him as Registrar in relation to the issues raised by the Complainant) of the establishment of the sub-committee within the School to look at the proposed changes to the continuous assessment method. The witness told the Court that there had been more consultation about this issue within the School of Business than most other academic issues across the University. He also said that the model of continuous assessment put in place by Professor McNamara is consistent with the model used across two-thirds of academic modules in the University and there had been no complaints about its operation from students in 2014-15 as it had been to students’ benefit. Furthermore, the Complainant, he said, never appealed to the Registrar from Professor McNamara’s decision. Professor Mulkeen also gave very cogent evidence in relation to the occurrence of overcrowding in certain lecture venues at the start of each academic year when students are still free to change the modules they are registered for and why it was particularly acute at the beginning of the 2014-15 academic year. However, he said, Professor McNamara alerted him to the particular issue with the lecturer in the School of Business who had raised concerns with him about attendance at her lectures and the issue was resolved within twenty-four hours. Professor Donovan had been a member of the sub-committee established to consider the continuous assessment proposals. He told the Court that the sub-committee never reached a consensus on the proposals and that, in his view, it was an abuse of process for Professor McNamara to force the issue through in those circumstances. Having considered the totality of Professor Donovan’s account of events, the Court is of the view that as he clearly had ‘skin in the game’ his evidence does not carry the same weight as that of Professor Mulkeen. The Court accepts that a complainant under the Act is not required to have referred to the Act or to have identified his complaints using the language of the Act when raising allegations of wrongdoing in order to benefit from the protection of the Act. The purpose of the Act is to protect individuals who make a disclosure of information that, in their reasonable belief, tends to show wrongdoing. In this case, in the Court’s judgment, taken at its height – and allowing for the fact that the Complainant was not familiar with the terminology in the Act in 2014 – there is no evidence before the Court that establishes that the Complainant’s actions between May and October 2014 (and particularly his interactions with his line manager, Professor McNamara, during that period) were concerned with highlighting alleged wrongdoings. In the Court’s view, the more credible explanation for what occurred is to be found in the contrast between the Complainant’s and Professor McNamara’s respective approaches to leading the School of Business. The Court’s view is informed by the absence of any contemporaneous attempt on the part of the Complainant to frame his complaints and observations as a breach of legal obligations. The Court must also have regard to the addressee and recipient of the Complainant’s alleged protected disclosures. Section 6 to 10 provide for a stepped disclosure regime whereby a worker must comply with certain requirements when making their disclosure to specific recipients in order for their disclosure to attract the protections contained in the Act. The stepped disclosure regime contains three distinct levels of disclosure requirements: (i) the first step covers disclosures to the worker's employer, to a Minister and to a legal advisor in the course of obtaining legal advice; (ii) the second step is a disclosure to a prescribed person; and (iii) the third step is a disclosure in cases other than to those recipients in the first and second steps. The Complainant did not address his concerns – either about the changes to the continuous assessment regime or about the excessive number of students attending lectures in certain venues – to anyone other than Professor McNamara – his line manager and the person with direct responsibility within the School of Business for these issues – and his colleagues amongst the academic staff in the School. As has already been noted, the Complainant did not escalate his concerns about Professor McNamara’s decisions in relation to the rules to be applied to continuous assessment either to the Registrar or to the Academic Council. In that sense, the Complainant does not meet the requirement under section 6 of the Act to have raised a protected disclosure with his employer in 2014 or after the Respondent published its Protected Disclosure (Whistleblowing) Procedure in March 2016 or at all. Having determined that the Complainant did not make a protected disclosure within the meaning of the Act, it is not necessary for the Court to dwell at length on the Complainant’s contention that his secondment to the Kennedy Institute constitutes a detriment that was visited upon him as a consequence of his having made a protected disclosure. The Complainant submits that his standing in the academic community has been left in tatters as a result of this secondment and the reason for it has given rise to much speculation amongst colleagues. He has, as a consequence, been deprived of valuable networking and collaboration opportunities that can only be gained by attending conferences in his field with the result that his scholarly output has dropped off dramatically. In the Court’s judgment, it was the findings of the Devine Report in relation to the state of affairs within the School of Business that followed from the very public deterioration in relations between the Complainant and Professor McNamara, his successor as Head of School, that prompted the President to exercise his statutory authority to second the Complainant from the School of Business to the Kennedy Institute. No causal link has been established between the fact that the Complainant vented his legitimate concerns about developments in the School of Business during 2014per seand his secondment; it was the manner in which those concerns were raised that formed the basis for the President’s concerns and ultimately led to his decision. The Devine Report found that the Complainant “knew or ought to have known that the impact of his actions in effectively questioning the rationale for the decision by the Head of School, would have been potentially adverse to Professor McNamara and his standing in the school as Professor and Head of School”. For the reasons stated above, the Court finds that the appeal fails and the decision of the Adjudication Officer is upheld.
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