Complainant

Respondent

Parties

Gerard  Crawley

Dundalk Institute of Technology

Representatives

Tom Mallon B.L. instructed by Arthur Cox

Act

Complaint Reference No.

Date of Receipt

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

CA-00027313-001

26/03/2019

The complainant has worked as an accountant in Dundalk Institute of Technology (DKIT) since 2005, initially as a contractor, then as an employee. He complains that he made a number of protected Disclosures following which he was subjected to penalisation.

This is one of three complaints and is the main one. The others are dealt with in ADJs 33625 and 34746.

In 2016 the complainant was assigned reporting responsibility for the Research and Contracts area, a role that he previously had reported into and noticed that income within that area had been materially underdeclared in previous years. He notified this to his manager, who agreed with him but told him to continue as previously.

He then made a protected disclosure to the respondent in December 2016, and two further disclosures in 2017 to the Higher Education Authority (HEA) and to the Comptroller and Auditor General (C&AG).

In the course of their audit (summer 2017) the C&AG followed up on his disclosures and determined that €812k of DKIT income that should have been reported in the years prior to 2016 had not been.  They advised that the respondent should report a prior year error in their 2016 Financial Statements, but this did not happen.

As the 2016 financial statements did not report a prior period error and materially overstated the 2016 income, the C&AG issued a qualified audit report (opining that the accounts were inaccurate and were not true and fair).

However, the 2016 financial statements published on the respondent website made no mention of the C&AG audit report and the minutes of the May 2018 Governing Body meeting, at which these accounts were approved, indicate that it had been misinformed.

On December 6th, 2018, the complainant made a further protected disclosure to the respondent on these matters. He says he suffered penalisation as a result of this.

He submitted a grievance in July 2017. Management did not adhere to the agreed grievance procedure, appointing ‘Raise a Concern’ to investigate. This took a very long time, and a report was issued in April 2021.  The respondent refused to provide him with the report.

For the purposes of this process, the key protected disclosure was the one to the respondent on December 6th, 2018 which noted that the minutes of their meeting included a materially false assertion about the financial statements they had approved and that it was deliberately concealing the C&AG qualified audit report, thereby misrepresenting its financial performance.

It further stated that the accounts were not compliant with various standards for the sector and that FOI legislation was not being complied with and communicated that a reporting accountant was not being given access to the relevant documentation for the area specifically within his remit.

Finally, it suggested that they investigate the €812K income the C&AG had opined pre-dated 2016.

Section 3(1) of the Protected Disclosures Act 2014 provides that:

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 of any discipline, reprimand or other 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 following are the incidents of penalisation that fall within the cognisable period of this complaint which was submitted on March 26th, 2019.

Immediately after the disclosure on December 6th, 2018 an allegation was made in relation to a ‘missed deadline’ and reference was made by his manager to what he had been working on the day the disclosure was made.

A second act of penalisation was an investigation by DKIT solicitors on December 13th, 2018 commissioned by the DKIT HR Manager. This included a trawl of the complainant’s DKIT email account on March 1st, 2019.

The complainant objected to the withdrawal of his authorisation to undertake external work to both the investigator, Raise a Concern and to DKIT HR.

At that point, the Raise a Concern investigation offered the ideal means to consider this. The respondent HR Director has since acknowledged that the restriction of the complainant’s external work followed as a direct consequence of the protected disclosures.

There have been significant departures from DKIT published policies which is referred to in the Respondent ‘s submission:

“On 9 October 2018, the Institute confirmed that Mr Crawley's application for external work authorisation had been rejected as it was "over the maximum allowable working time per week on an ongoing basis as per information he himself supplied in various job applications he submitted.”.

The complainant had applied for renewal of his external work authorisation and notified the time commitment of the external work at 5.5 Hrs/Week.

Crucially, the quotation in the respondent submission demonstrates penalisation arising from the protected disclosures: the “information he himself supplied in various job applications he submitted”   had been available in each of the previous years when he had been repeatedly and routinely granted External Work authorisation without inordinate delay or scrutiny.

It was only after the protected disclosures that the HR Manager delayed the renewal application by six months before misprocessing it.

Evidence submitted shows the communication between Raise-a-Concern, DKIT HR and the complainant demonstrating how a complaint about a manager was dismissed without any due process.

The rationale cited for this decision was false: there was no annual renewal requirement within the External Work policy. It is also inconsistent with the rationale quoted in the respondent submission. That decision effectively shut down consideration of the penalisation complaint about the line manager.

DKIT Data Protection Policy, the DKIT eRecruitment policy and GDPR fall within the remit of DKIT HR. These policies pledge that job applications will only be used for the recruitment process.

Review and citation of these previous job applications breached DkiT policy as well as breaching GDPR. The role of the Data Protection Officer (DPO) includes “to act as a representative of data subjects in relation to the processing of their personal data”.

Raise a Concern’s scope was controlled by DKIT HR and this grievance was not addressed. Denial of the grievance mechanism is grossly unfair treatment. In this case it constitutes penalisation arising directly from my protected disclosures.

In its submission, the respondent has attempted to blame the complainant for delays in the grievance process.  However, DKIT HR departed from the published Grievance Procedure.

Contrary to their submission the complainant had no input into the Terms of Reference and did not see it until January 2018 when he was scheduled to meet Raise A Concern. He objected to the limits of its scope at that time.

When he later described penalisation to Raise a Concern, they sought to include it in their investigation, but this was denied by the respondent. This did not cause any delay.

On the other hand, evidence has been presented that DKIT Management took more than a year to agree their Raise a Concern interview file notes with the investigator. In early 2020 DKIT HR redirected Raise a Concern to interview people who had been available right from the start.

The complainant’s submission also shows that documentation had been denied particular to his role and remit without due cause. Withholding work related information is commonly cited (including in the DKIT Dignity at Work policy) as bullying behaviour.

In this case it was discriminatory penalisation. As complained of in the email to Governing Body in December 2018, these refusals were also in violation of the commitment to the highest possible standards of openness, probity and accountability contained within the DKIT Protected Disclosure Policy.

      In conclusion, within the six-month period, this demonstrates clear cause and effect link between the protected disclosures of wrongdoing and the consequential penalisation.

Given the timing of the false accusations, the solicitor’s investigations and the IT trawls initiated immediately after the protected disclosure email to the Governing Body, the retaliatory nature of management’s actions is undeniable.

It fits into a longer overall pattern of penalisation: manipulation of processes to cause disadvantage re promotion/recruitment; denial of proper access to grievance procedures & processes; discriminatory denial of information and documentation relating to my work remit and professional competence.

This penalisation clearly followed and happened because of the protected disclosures. 

Section 12 of the Act offers protection from penalisation for having made protected disclosures:

“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 description of penalisation under Section 3(1) the Act referred to above meets that carried out by DKIT management in response to his protected disclosure of December 2018. This submission demonstrates the clear, proximate cause-and-effect between the protected disclosure to the Governing Body and the consequential penalisation.

It fits into a longer overall pattern of penalisation which is also clearly evidenced within this six- month window.

The penalisation followed on from and happened because of the disclosures. In particular, that in December 2018 to the Governing Body. On this basis he seeks relief and redress under the Protected Disclosures Act 2014.

The case was part heard on March 10th, 2021 at which time it was decided that Mr Crawley would submit a second submission that is specific to the relevant WRC timelines. He provided this on April 30th, 2021.

The complainant made two further complaints to the WRC against the respondent on 31st May 2021, and on 27th August 2021,

By way of a preliminary point, in Mr Crawley’s first WRC Complaint Form he stated:

 “I made a protected disclosure to the DkIT Finance, Audit & Risk (FAR) Committee in Dec 2016 in line with the DKIT policy."

In his Second Submission Mr Crawley states:

 "I have made several protected disclosures between 2016 and 2021 in relation to the DKIT accounts to various authorities including to the Comptroller and Auditor General (C&AG) and to the Minister for Higher Education.”

And

“Within the time frame that this process deals with, I made a protected disclosure to the Governing Body on 06 December 2018 raising concerns as to the misinformation recorded in the minutes of their May 2018 meeting.”

In the hearing on 10 March 2021 Mr Crawley contended that this email dated December 6th,  2018 from him to the Institute constituted a protected disclosure. In his second WRC Complaint Form and third WRC Complaint Form he largely repeats the claims in his Second Submission stating:

“I have made several protected disclosures between 2016 and 2021 in relation to the DkIT accounts. I have made these to various authorities including to the Comptroller and Auditor General (C&AG) and to the Minister for Higher Education.”

In his Final Submission Mr Crawley lists other alleged disclosures and his complaint has expanded from having allegedly made one protected disclosure in 2016 on his first Complaint Form to having allegedly made eight separate protected disclosures.

He has therefore changed the narrative around his alleged protected disclosure and has chosen an entirely new disclosure that he did not refer to in his first WRC Complaint Form. In his Final Submission he now alleges there have been eight protected disclosures ma  de but refers to there being a "key" protected disclosure.

In bringing a claim under the Act there are a number of proofs that need to be satisfied: a protected disclosure under the Act been made; the worker been penalised by his/her employer arising from the making of that disclosure; the worker has suffered detriment and there is a causal connection between the making of a protected disclosure and the detriment suffered.

The complainant has failed to satisfy the requisite proofs for these claims.

Recently, the High Court in considering whether a protected disclosure had been made in Baranya v Rosderra Irish Meats Group Ltd [2020] IEHC 56held that s 5(2) of the Act:

“defines relevant information as information in the reasonable belief of the worker, tends to show one or more of the relevant wrongdoings. That some information in the relevant communication, must attribute some act or omission, on the part of the respondent, that the appellant might reasonably believe tends to show one or more of the relevant wrongdoings is clearly necessary. In the absence of any asserted act or omission the concept of relevant information is not fulfilled in the instant communication as found by the Labour Court.” (emphasis added)

Mr Crawley’s claims of a protected disclosure are nebulous and inconsistent. He has changed the narrative again and again between his first WRC Complaint Form and later submissions. Therefore, in this instance there has been an absence of any asserted act or omission and his claims must therefore fail.

Section 5 of the Protected Disclosures Act 2014 sets out:

5. (1) For the purposes of this Act “protected disclosure” means…. 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.

(a)   For the purposes of this Act information is “relevant information” if—in the reasonable belief of the worker, it tends to show one or more relevant wrongdoings, and 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. (emphasis added)

The complainant refers to “several protected disclosures between 2016 and 2021” and in his final submission he lists eight different alleged protected disclosures. 

Given that the second submission refers directly to the 2018 email and that the final submission refers to this as the “key protected disclosure", this submission will focus on the 2018 Email and demonstrate that this email does not fall within the definition of a “protected disclosure” under the Act for a number of reasons.

Dr Lauren Kieran’s definition of a disclosure was endorsed in the WRC in the case of A Commercialisation Specialist v. A Government Agency ADJ-00007228, 23 November 2017), specifically that a disclosure: “must be a disclosure of information and not merely a bare allegation or an expression of concern”.

It is very clear that Mr Crawley’s 2018 Email is merely an expression of concern, in particular it includes the following statements:

“I am curious to understand how the Governing Body could be under such an impression so as to record an assertion like this.” …..

“Given this difference of €812,000 in relation to the primary financial statement reporting performance, it is difficult to reconcile these figures with the statement referenced above from the minutes of your meeting.” ….

“As I understand it, this selective omission is not compliant with the requirements of the DEFER Government Accounting Unit and the THEA Code of Governance for lOT's.” ….

“In addition, I want to complain to you about the institute's general resistance to transparency, as multiple documents requested under FOI (e.g. the "technical report'' which purportedly supported the institute's submission of two differing sets of 2015/2016 accounts to the C&AG) have been repeatedly refused on spurious grounds” ….

“I also wish to express my concern and dissatisfaction to you that documents such as these are denied to me despite relating specifically to the work area within my remit and to which my professional qualifications pertain.” ….

“I would like to know if the Governing Body or the Executive performed any assessment as to whether DKIT's funding would be adversely affected as a result of their choosing to present accounts to the Oireachtas that they knew would be qualified by the C&AG.”

Section 5(5) of the Act states:

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.

With the exception of his dissatisfaction with the Institute’s Freedom of Information process all of his statements in the 2018 Email relate to the DKIT 2015/2016 financial accounts. Mr Crawley is employed as an accountant in DKIT. Therefore, it cannot reasonably be argued that his complaints in relation to the Institute’s finances are outside the function of an accountant to detect.

There are parallels between this case and the Labour Court case of Donegal County Council v. Liam Carr PDD161, 7 June 2016) in which the Court found that “complaints made by the Appellant in pursuance of his duties as Station Officer were not Protected Disclosures within the meaning of the Act.”

Similarly, in the more recent case of Northside Security Services Company Limited By Guarantee v Mr Patrick Dunne PDD211 the Labour Court found that monitoring a CCTV system was a primary function of a security guard and therefore, the disclosure did not constitute a relevant wrong doing for the purposes of the Act. The review and consideration of the financial accounts of the Institute is a primary function of an accountant working for the Institute.

Mr Crawley does not provide any reason as to why his 2018 Email, made no reference to this being a protected disclosure.   Nor, did he do so in his follow up email to the Governing Body in October 2020. Nor in the 2018 email in his first WRC Complaint Form.

In fact, the first time Mr Crawley alleged that this email was a protected disclosure was in the first hearing of this matter in the WRC on March 10th, 2021 and then subsequently in his second submission dated April 30th, 2021 (over two years after the 2018 Email).

Mr Crawley is no stranger to the concept of protected disclosures. He invoked it to make a prior disclosure on December19th 2016 (This was the alleged protected disclosure that he previously based his claim for penalisation in his first WRC Submission.

The Institute’s Finance, Audit and Risk Committee appointed an external firm, LHMCaseyMcGrath,toconductanindependentinvestigationintothedisclosureofDecember2016inaccordancewiththePolicy.

On May 8th, 2017, LHM Casey McGrath produced the results of the investigation in the form of a report. The Institute does not concede that a protected disclosure was made by Mr Crawley in December 2016.

Mr Crawley was therefore aware of the process for making a protected disclosure and the usual resulting procedure and he knew the weight of the terms "disclosure" and "protected disclosure" from first-hand experience of invoking the Policy.  

It therefore raises the question as to why he did not once ask whether his 2018 Email had been dealt with in accordance with the Policy. Furthermore, why Mr Crawley did not do so in all of his other "protected disclosures between 2016 and 2021 in relation to the DK.IT accounts.”

In the 2018 Email upon which Mr Crawley now bases his claim there is no reference whatsoever to it being a protected disclosure or to him invoking the Policy. It is a remarkable that the first time Mr Crawley refers to the 2018 Email as a protected disclosure is when such a statement is most convenient to him.

Mr Crawley’s case is similar to that of An Employee v. An EmployerADJ-00003371 where the WRC found thatinformationwas not aprotected disclosurebecausethe complainant did not make a complaint until her Solicitor wrote to the respondentcompany and did not utilise the respondent company’s whistle-blower policy.

Mr Crawley did not use the Institute’s Policy and the first time he referred to this he did not claim that his 2018 Email was a protected disclosure until his Second Submission.

Given his extensive knowledge of the Policy and how to invoke it, it cannot be reasonably believed that Mr Crawley made a protected disclosure in his 2018 Email. The case of Cabin Crew Operative v. An Airline ADJ-00013479 is instructive in this regard.

In that case the Adjudication Officer found that the case under the Act had no foundation and in reaching such a conclusion commented:

 “There was certainly no attempt to follow the “Whistle-blower and Good Faith Reporting Policy” which has been in operation in the workplace since 2015 …… about which the Complainant was fully aware." The Adjudication Officer noted that she cannot find that “the Complainant can reasonably believe that she has made a Protected Disclosure”.

By virtue of Section 5(5) of the Act Mr Crawley has not made a protected disclosure.

If Mr Crawley were able to prove that he had made a protected disclosure from he would then need to showthatanypenalisationwasasaresultofhavingmadetheprotecteddisclosure.

There must be (1) detriment; and (2) a causal connection between the making of a protected disclosure and the detriment suffered. Although Mr Crawley has taken a scattergun approach to his Second Submission he nevertheless fails to demonstrate the requisite proofs for penalisation.

In the first instance Mr Crawley relies on emails between himself and his manager to demonstrate this alleged penalisation. His manager is not a member of the Governing Body to which Mr Crawley sent his alleged disclosure.

The first email in this thread is dated November 27th, 2018 (prior to the alleged protected disclosure). On December 6th, 2018 Mr Crawley told the manager that he hoped to have the November 2018 management accounts to him "tomorrow" i.e. December 7th, 2018.    But the following day he had not done so, and his manager responded noting he was disappointed that Mr Crawley had missed the deadline.

It is clear that this email thread is in relation to the interpretation of a deadline. The reports needed to be produced at a meeting on December 10th, 2018. Mr Crawley said he would provide the report by Friday December 7th but did not do so. There is absolutely no connection between this thread of emails and the 2018 Email. Therefore, this claim for penalisation must fail.

In relation to his claims of further harassment, all of the emails referred to pre-date the 2018 Email and Mr Crawley therefore cannot show that these emails were as a result of him having made a protected disclosure.

MrCrawleyseekstofurtherhisargumentbyrelyingonselectivepagesfromatranscriptbetweenhis managerandanindependentinvestigatorMsNiamhMcGowan whoconductedanindependentfact-finding investigation in relation to the apparent misconduct on the part of Mr Crawley arising from hisapparentrunningofhisownbusinessasanAccountantontheInstitutestimeandusingtheInstitutesresources.

The results of this investigation were issued on October 20th, 2020 and are now subject to a disciplinary hearing. Mr Crawley has sought the postponement of this hearing on a number of occasions. Paragraph 4.19 of the Institute’s Disciplinary Procedure sets out:

“All matters relating to the disciplinary procedure are strictly confidential to the parties and their representatives involved and breach of this confidentially may in itself result in disciplinary action.”

An extract from the report dated 20 October 2020 containing the Investigation’s Findings of Fact was submitted.

Mr Crawley seeks to rely on the email from Mr Quinn to him on 8 January 2019 which states:

 “As discussed, please review your records for 6/12/18 and report back on your activities for that day.”

And the transcript between Mr Quinn and Ms McGowan where Mr Quinn states:

 "I was aware of a letter that had been sent to the Governing Body on that date from Gerard which I felt was targeted at me in a way, so I suppose I really wanted to understand why he was better off writing that letter to the Governing Body rather than providing the work for me."

Mr Crawley does not, and cannot, demonstrate that this email and Mr Quinn's knowledge caused him any detriment which a key component in is proving penalisation. Therefore, Mr Crawley’s claim for penalisation arising from this episode must fail.

Regarding the allegation of ‘Unfair & Discriminatory Treatment: Inordinate, Illegitimate, Stealth Investigations he says there were “inordinate, illegitimate, stealth investigations” but does not provide the background for these investigations.

Regarding the ‘investigation by DKIT Solicitors 13 Dec 2018, in 2017 Mr Crawley applied for the position of Vice President for Finance and Corporate Affairs but was not short-listed.

In a grievance dated July 31st, 2017 Mr Crawley stated that he should have been shortlisted for interview based on his experience as Managing Director with his own company.   

He claimed that, arising from that work hewas involved in strategy, managing directorship and leadership which should havebeenconsideredfortheinterviewprocess.

However, at the same time he was a full-time employee of the Institute. The HR Director subsequently refused Mr Crawley's application for external work as he was mindful of the dichotomy between a full-time employee of the Institute who was also claiming to be doing external work at the same time.

Mr Crawley had been asked to step down as managing director of his company but had not done so. This suspicion precipitated a review of Mr Crawley’s external company. There is no detriment caused to Mr Crawley in the Institute having this knowledge and even if he could argue there was, there was no causal connection between Mr Crawley’s 2018 email and the alleged detriment suffered.

Regarding the ‘trawl of my DKIT email account HR Manager in blatant violation of DKIT Policies’ the Institute’s Acceptable Usage Policy specifies:

“To achieve its aims in this regard, Dundalk Institute of Technology reserves the right to monitor all Dundalk Institute of Technology information resources and Dundalk Institute of Technology data. Any monitoring of Dundalk Institute of Technology data and/or Dundalk Institute of Technology information resources may be random or selective depending on circumstances at that time and will only be conducted following direction from an authorised individual.

All Dundalk Institute of Technology system activity including internet, email and social media activity is monitored and logged.  

On December 13th, 2018 the Institute, in accordance with its Acceptable Usage Policy authorised the monitoring of Mr Crawley's email use. This stemmed from suspicion that he had continued to be involved in private business activities during the Institute working time and using the Institute's resources in direct violation of Appendix II of the Acceptable Usage Policy.

Prior to the trawl Mr Crawley had been asked to step down as the Managing Director of his company.

 The Institute stated that it was not satisfied that the external work he was engaging in would not conflict with or affect the efficient discharge of his role within the Institute. The Institute asked for written confirmation of this arrangement by October 1st, 2018 No such confirmation was received.

Therefore, Mr Crawley was selected for an IT review because of concern that the external work he had described in his job application and in his application form for external work indicated an external engagement at a very significant level with strong potential to affect the discharge of his role with the respondent.

There is no detriment caused to Mr Crawley in the Institute having this knowledge. Even if Mr Crawley could argue there was, there is no causal connection between 2018 Email and the alleged detriment suffered.

Mr Crawley refers to a PwC investigation that was commissioned on April 8th, 2019. The results of the report were published on 5 July 2019. This cannot form part of the basis for Mr Crawley’s claim as it post-dates the date of the First WRC complaint.

In his complaint form, Mr Crawley alleges thatby not being successful in his application for the position of Financial Analyst he waspenalisedunderthe Act. Mr Crawley again confuses the disclosure he seeks to rely on.

He was awarded high scores in each of theseparate competencies but alleges that by not being awarded this position he was penalised formaking a disclosure.

However, of the selection board only two of the five knew of his disclosure. Furthermore, he was the second highest ranked applicant. There was no discussion of the 2018 Email or any other alleged disclosure on the part of the Selection Board and it played no part in its deliberations. It is clear from the foregoing that Mr Crawley’s complaint is entirely misconceived and there is simply no basis for his contention that he was penalised in 2019 for any disclosure he allegedly made.

Mr Crawley complains about the ongoing grievance investigation. This process is unrelated to his 2018 Email. On July 31st, 2017 he filed a grievance under the Grievance Procedure. This process therefore commenced almost 18 months prior to the 2018 Email.

On August 30th and September 29th, 2017, the Institute confirmed receipt of the grievance and informed Mr Crawley that Raise A Concern Ltd would be conducting an external independent investigation.

Terms of Reference were signed on December 1st, 2017 and the investigator first met Mr Crawley in January 2018. On June 29th, 2018, an Addendum to the Terms of Reference was agreed as additional issues were raised by Mr Crawley.

On October 3rd, 2018, Mr Crawley submitted further grievances and information that he wished to be investigated; including; the issue of external work authorisation and a requirement to divest his external work.

The respondent refers to emails between him and the Institute in October and November 2018, all interactions pre- date the 2018 Email. On April 2nd, 2019, the investigator confirmed to the Institute that the complainant was still in the process of discussing the agreed Terms of Reference, although he has raised the delay in his WRC complaint forms.

Mr Crawley referred to the delay in the outcome of the Raise A Concern Ltd investigation in his First He was still in the process of discussing his requested amendments to the agreed Terms of Reference with the investigator on April 2nd, 2019 and again on January 3rd, 2021 almost 20 months after he lodged the first WRC Complaint form.

The investigation is an external process and is not relevant to these WRC Claims. The complainant has not been able to show any link between the 2018 Email and the grievance process. This complaint should be rejected.

Regarding the complainant’s claim that he was deniedrecords ‘particular to my role and remit’ the emails referred to all pre-date 2018 Email with the exception of one email which is dated in 2021 and post-dates his First WRC Complaint Form therefore, these cannot form part of his submission before the WRC.

Mr Crawley fails to demonstrate detriment in this regard, and even if he were to say there had been detriment caused to him he has not demonstrated a causal link between this treatment and the 2018 Email or any other alleged disclosure.

The issues in the complaint are set out in detail in the submissions of the parties.

There are three, inter-related complaints arising from the facts set out above, but only one of those complaints is the subject of this Decision. (Those others will be the subject of separate Decisions in ADJ 33625 and ADJ 34746).

This complaint was made on March 26th, 2019, and therefore the only alleged penalisations which can be considered for the purposes of the complaint are those which occurred in the six-month period before that. In other words, from September 27th, the previous year.

In that period there were the following incidents which fall to be considered.

The first was what might be referred to for convenience as the ‘Missed Deadline’ incident which occurred at the end of November and into December of 2018.

The second may be said to relate to the respondent monitoring the complainant’s emails beginning on December 13th, some days after the disclosure, and a related piece of research by the respondent’s legal advisors on the complainant‘s private business activity.

The third arose from his application for a promotional position as a Financial Analyst in February 2018, and various issues related to that application, specifically the fact that he was not provided with information he needed to assist with his preparations.

A fourth may lie in the initiation of action against the complainant in respect of his private business activities. A further element of this complaint related to the delay in processing a previous workplace complaint he had made in July 2017.

The complainant says that the alleged penalisation arose not from the first disclosure he made (in December 2016) but from a second disclosure to his employer on December 6th, 2018.

(This was, in fact his fourth disclosure in total, two others had been made to external agencies in April 2017. On the basis of the complainant’s own submission and numerous references to it, the disclosure of December 2018 to the respondent is the one on which the case turns. The other alleged disclosures were not opened to or relied on at the hearing and they have not been considered for the purposes of what follows.)

Before that, other questions arise as to whether the complainant’s actions meet the definitions in the Protected Disclosures Act, specifically whether there was a disclosure of a ‘relevant wrongdoing’ in accordance with the provisions of the Act.

The respondent has submitted that the complainant also falls outside the provisions of the Act due to the operation of Section 5.5, as his actions were part of his general duties.

Section 5 of the Protected Disclosures Act 2014 sets out:

5. (1) For the purposes of this Act “protected disclosure” means…. 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.

(a)   For the purposes of this Act information is “relevant information” if—in the reasonable belief of the worker, it tends to show one or more relevant wrongdoings, and it came to the attention of the worker in connection with the worker’s employment.

(4)  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.(emphasis added)

The respondent referred to the definition offered by Dr Lauren Kieran, Barrister, and academic and an expert on the Act, of a disclosure which was endorsed in the WRC in the case of A Commercialisation Specialist v. A Government Agency ADJ-00007228, 23 November 2017).

The definition states, specifically that a disclosure: “must be a disclosure of information and not merely a bare allegation or an expression of concern”.

The respondent submitted that Mr Crawley’s 2018 email to the Governing Body of the Institute was ‘merely an expression of concern’ and drew attention to the following statements in the purported disclosure:

“I am curious to understand how the Governing Body could be under such an   impression so as to record an assertion like this.” …..

“Given this difference of €812,000 in relation to the primary financial statement reporting performance, it is difficult to reconcile these figures with the statement referenced above from the minutes of your meeting.” ….

“As I understand it, this selective omission is not compliant with the requirements of the DEFER Government Accounting Unit and the THEA Code of Governance for lOT's.” ….

“In addition, I want to complain to you about the institute's general resistance to transparency, as multiple documents requested under FOI (e.g., the "technical report'' which purportedly supported the institute's submission of two differing sets of 2015/2016 accounts to the C&AG) have been repeatedly refused on spurious grounds” ….

“I also wish to express my concern and dissatisfaction to you that documents such as these are denied to me despite relating specifically to the work area within my remit and to which my professional qualifications pertain.” ….

“I would like to know if the Governing Body or the Executive performed any assessment as to whether DKIT's funding would be adversely affected as a result of their choosing to present accounts to the Oireachtas that they knew would be qualified by the C&AG.”

So, this is the first question.

The respondent asserted that at no stage did the complainant refer to this communication as a Protected Disclosure until the first WRC hearing of the matter on March 10th, 2021, some two and a half years later.

The respondent’s policy (section 8.12) specifies the manner in which a complaint should be made and echoes the legislation and the relevant Code of Practice. The person making the complaint is required only to have a ‘reasonable belief’ that ‘relevant wrongdoings’ have occurred, and the policy goes on to say how a complaint should be made.

The Act itself gives a sample of the types of actions that might constitute ‘relevant wrongdoings.

A related question is the applicability of Section 5(5) of the Act which states:

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.

Mr Crawley is employed as an accountant in DKIT and holds the professional status of a Chartered Accountant. The respondent submitted that it could not reasonably be argued that the complaints he made (as protected disclosures) in relation to the Institute’s finances fall outside the function of an accountant to detect.

Finally, there is the question as to whether the subject matter of the purported disclosure meets the criteria set out above.

As can be seen this gives rise to four issues.

The first is whether the complainant’s actions meet the definition of a disclosure of relevant information, including whether he held a ‘reasonable belief’ that a relevant wrongdoing had been or might be committed.

The second is whether he did so in accordance with the policies of the respondent.

The third is whether his actions are captured by the exemption in section 5.5.

Finally, there is the issue as to whether they could reasonably be said to relate to ‘relevant wrongdoings’, as exemplified in section 5.3 and in that regard the complainant’s status as a financial professional and a chartered accountant has relevance beyond the narrower issue arising under section 5.5, as submitted by the respondent.

Then lying on the other side of these tests is whether the complainant suffered any actual detriment, but that will be considered when, or if the need arises and I turn first to the four tests above.

Turning to the first issue, some background is necessary.

The complainant had, in December 2016 raised an issue about how certain income was shown in the respondent’s annual accounts. This was the subject of an investigation by an external accountancy firm.

The subject matter of the investigation was whether the respondent had incorrectly applied an accounting treatment to ‘a selection of income streams’ in the manner in which it treated ‘deferred income, and whether the accounts had been prepared in accordance with its own, and ‘Generally Accepted Accounting Principles, (GAPP).

The investigation was also invited to look at possible breaches of other relevant policies.

That investigation concluded that the financial statements had not materially misrepresented the respondent‘s income and that they were not ‘intentionally misstated’ in respect of financial reporting ‘which [had it happened] would constitute a fraud’.

The investigation report was critical on a number of counts in relation to compliance with the requirements of accounting ‘custom and practice’ but stated that it had not identified ‘any breaches of the code of conduct’ ‘or breaches of any other relevant code, policy or operating practice brought to [their] attention’.

The complainant persisted with his criticism and referred the matter in 2017 to both the Higher Education Authority and the Comptroller and Auditor-General. In his submission to the hearing, he said that this resulted in certain qualifications being place on the accounts.

The December 2018 communication (the final ‘protected disclosure’) arose because, according to the complainant, the respondent had not changed its previous practise in relation to the accounts. Some extracts from that email appear above.

It is clear that the law requires that the disclosure must be the disclosure of information and ‘not merely a bare allegation or an expression of concern’ (‘Protected Disclosures Act, 2014’ Annotated by Anthony Kerr and Lauren Kierans, Round Hall, 2017, p12).

The authors of that book refer to the English case of Everett Financial Management v Murrell EAT/552/02, 553/02, EAT 952/02 in which the Tribunal held that simply expressing concerns and seeking assurances that there has not been a breach of legal obligations did not amount to a disclosure under the UK legislation.

The respondent in this case relied on this definition of a disclosure which it submitted was endorsed by the WRC in A Commercialisation Specialist v. A Government Agency ADJ-00007228, 23 November 2017), specifically that a disclosure:

 “Must be a disclosure of information and not merely a bare allegation or an expression of concern”.

The key question arising then is what information is disclosed in the complainant’s email of December 2018 that carries a reasonable inference of a wrongdoing that is relevant and can be said to fall in any way into the order of relevant wrongdoings in the Act.

For the convenience of the reader, I repeat a shorter extract from the December 2018 email.

“I am curious to understand how the Governing Body could be under such an   impression so as to record an assertion like this.” …..

“Given this difference of €812,000 in relation to the primary financial statement reporting performance, it is difficult to reconcile these figures with the statement referenced above from the minutes of your meeting.” ….

“As I understand it, this selective omission is not compliant with the requirements of the DEFER Government Accounting Unit and the THEA Code of Governance for lOT's.” ….

It is hard to see any disclosure in these extracts (or indeed in the longer version of the email).

In fact, the tone of the above suggests otherwise; it is questioning in style and expressing the complainant’s curiosity about how a body (of which he was not a member and had not attended) had reached a particular decision and he then proceeds to express an opinion on the manner in which the respondent continued to prepare its accounts.

The complainant opens up new paragraphs with phrases such as ‘I want to complain (about a resistance to transparency), ‘I wish to express my concern and dissatisfaction with…’ ‘I would like to know if….’

And he prefaces his concluding remarks with, ‘I would ask you to consider the above matters….’

Put simply, there is no disclosure of information of any sort, not even, for example a confident assertion that the practise was wrong.

And bear in mind that the complainant would have to have been of the reasonable belief that it met a standard of wrongdoing envisaged by the degree of gravity of the examples in section 5.3, and not simply a difference of professional opinion about how best to comply with accountancy best practice and standards.

Also, at this point, the complainant was aware of the conclusions of the independent audit which had clearly found no wrongdoing following his first communication to the respondent in 2016.

This brings into focus the question of whether the complainant held a ‘reasonable belief’ in relation to a relevant wrongdoing.

The legislation was constructed so as to maximise transparency and protect the public interest, and it leans towards removing possible obstacles to a whistle-blower making a disclosure.

The disclosure need not be made in ‘good faith’ and there is a presumption that a disclosure does fall within the ambit of the legislation.

It is easy to understand that some workers in certain sectors in which disclosures may be in the public interest may not have the level of technical knowledge to be certain as to whether particular acts are irregular or wrongful. This becomes is a matter to be put to the test in subsequent processing without fear of penalisation.

Nonetheless, the qualification in the statute that a belief be ‘reasonable’ has significance and cannot be overlooked and must be considered by reference to some objective assessment of the complainant’s understanding of the matters at issue.

To do so we must look at the complainant’s status and qualifications.

In the course of the hearing, he sought to diminish his standing in the financial hierarchy of the respondent saying that he was fourth in the pecking order, and strongly, but as it turns out erroneously implying that he was a person of limited standing and influence in the scheme of things.

Two of the people he described as being above him were the President (essentially the respondent’s chief executive), and the Vice -President, who is at a level below, as the title suggests.

In addition, the complainant had himself been a candidate for the position of Vice-President and clearly saw himself as quite capable of a level of responsibility which he found it necessary to underplay at the hearing. (In the event he was not successful in that application).

He is also a fully qualified Chartered Accountant (also a fact revealed to the hearing with a degree of reticence) who has a professional understanding of the regulatory and compliance obligations related to the production of accounts.

Is it possible that he had a ‘reasonable belief’ that the accounting policies followed by the respondent would result in an offence being, or likely to be committed, or a failure to comply with a legal obligation, unlawful or improper use of funds, or enact or omission so oppressive, discriminatory, or grossly negligent or constituting gross mismanagement?

Leaving aside his own professional capacity (and obligation) to assess these things he was already aware of the independent report following his initiative in December 2016.

Much was made of a qualification being attached to the accounts, but this is not uncommon and is not, in itself an indication of an offence, or of the gravity of wrongdoing envisaged by the Act.

Therefore, looking at the three stages required by the Act; the relevant information, the reasonable belief, and the tendency to show relevant wrongdoings the complainant fails on all three counts.

Having regard to all of these considerations I find that there is no basis on which the complainant could have formed or held a reasonable belief that a relevant wrongdoing was likely to occur.

The issues arising under section 5.5 becomes irrelevant given the above. This is the exemption in relation to workers whose job (or that of their employer) is to ‘detect, investigate or prosecute wrongdoing’.

Kerr and Kierans (op cit) note that this means that the employee will only be protected if the wrongdoing has been carried out by their employer and continue that the rationale for the provision is ‘hard to discern’.

Indeed, it will surely be a rare event that the wrongdoing complained of by a worker will not have been carried out by the employer, or that there will be an ‘act or omission’ of some description.

The respondent (and Kerr and Kierans) refer to the case of Donegal County Council v Carr PDD 1/2016 reported at [2017] E.L.R 259) in which a firefighter made various disclosures about his co-workers and their capacity to fulfil their duties.

In that case the court found that the matters reported were within the section 5.5 responsibilities and also that they related to matters other than alleged omission by the employer, so it is not relevant in this case on the Section 5.5 point.

Yet again all of the words in the section are important and the respondent cannot avail of the Section 5.5 defence in this case as the subject matter of the complaints clearly related to the employer’s acts or omissions.

That said, where an employee is doing no more than engaging in communication with his employer on matters related to his expertise and responsibility only, then the other tests required by the Act will have to be met as set out above. Section 5.5 apart, the complainant does not do so.

Finally, I note that the complainant in sending the December 2018 complaint direct to the Governing Body did not comply with the respondent’s policy which required it to be set to the Audit committee.

Again, the Act’s general deference to whistle blowers makes it clear that this is not decisive.

In the light of these findings, it is unnecessary to do so, but the attempt by the complainant to connect various subsequent actions by the respondent as retaliation and penalisation had little merit.

His complaint about the ‘Missed Deadline’ incident is fanciful and speculative, and predated, in part his complaint, and largely based on a casual comment by his manager on which no case can be built.

The respondent’s raising of the complainant’s external private business involvement was a matter that lay within fully within its rights and has been processed in accordance with proper procedures. It is impossible (and in any case unnecessary) to say whether there was any retaliatory element to this but insofar as the respondent was applying the terms of the complainant’s contract of employment and doing so with fair procedure this cannot ground a complaint of penalisation.

I find, for the reasons fully set out above that the complainant has not made a Protected Disclosure that meets the requirements of the Protected Disclosures Act 2014, his complaint of penalisation does not therefore arise, and his complaint is not well founded.

For the reasons set out above I find that complaint CA-00027313-001 is not well-founded.

Protected Disclosure, Penalisation