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-00045872-001

27/08/2021

This is one of three complaints arising out of a broadly similar set of facts, but with some additional material in relation to alleged penalisation. The substantive complaint is addressed in ADJ 26170, and there has been some greater summarising of the arguments in this Decision.

The complainant has worked as an accountant in Dundalk Institute of Technology (DKIT) since 2005, initially as a contractor, then as an employee.

In 2016 he was assigned reporting responsibility for the Research and Contracts area, a role that he had previously 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 says that he then made a protected disclosure to the respondent in December 2016, and two further disclosures in 2017 with the Higher Education Authority (HEA) and the Comptroller and Auditor General (C&AG).

During 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 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 DKIT website made no mention of the C&AG audit report and the minutes of the May 2018 DKIT Governing Body meeting, at which these accounts were approved, indicated to the complainant that it had  been misinformed.

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

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. DKIT Management 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. It also 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. This protected disclosure email precipitated management penalisation as follows.

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

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.

This penalisation, which has occurred as a direct consequence of the December 2018 protected disclosure are expanded on below.

A Stage 4 Disciplinary Procedure was initiated as a direct consequence of the protected disclosures and he has remained on paid suspension.  There has been a denial of fair and proper access to DKIT Grievance Procedures.

Management has refused to follow its own published and agreed procedure in relation  to the two grievances that filed by the complainant  that notified penalisation arising from protected disclosures. FOI responses reveal that the complainant is unique in DKIT in being denied the process laid out under the procedure. The DKIT President has responded that his grievances are being dealt with under the    Disciplinary Procedure.

DKIT Management did not notify him that the investigator (Raise a Concern) had reported back after their investigation and in breach of several DKIT policies (as well as natural justice) by refusing to provide the investigation report.

The grievance policy allows for the referral of an unresolved grievance to the WRC. Despite this, DKIT refused to attend a hearing.

There has been a denial of everyday information and resources (E.g., payslips, policies) through the removal of his access to the Staff Portal and he has been denied access to work records for over two years. In addition, the FOI process has been abused by the HR Manager’s gratuitous obfuscation and interference.

The primary examples of the penalisation within this period are denial of access to a fair disciplinary process conducted in compliance with DKIT Disciplinary Procedure.

It also includes the refusal of DKIT management to provide theRaise a Concern report despite the DKIT Disciplinary Procedurestipulating that such documentation must be made available.

Also, the President’s nominee would not agree to recuse herself despite having a specified role at  an earlier stage of the process within the Acceptable Usage Policy.

The complainant remains on paid suspension and has been denied access to the everyday information and resources available to other staff.   The HR Manager threatened that he would be placed on sick leave (and face disciplinary action) if he failed to attend an Occupational Health appointment.

DKIT Management have continued to impede him in promotional opportunities and he remains locked out of the staff recruitment portal.

Section 12 of the Protected Disclosures Act 2014 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 and includes manipulation of processes to disadvantage the complainant re promotion/recruitment; denial of proper access to grievance procedures & processes; discriminatory denial of information and documentation relating to his work remit and professional competence.

The penalisation visited upon him clearly followed from and happened because of the protecteddisclosures, in particular, his protected disclosure of  December 6th 2018 to the Governing Body. Thatimmediately precipitated the penalisation evidenced the following day and the followingweek.

A full version of the respondent’s position is set out in ADJ 20716 which might be regarded as the substantive case. A summary follows, as well as a response to the specific penalisation in this complaint.

In summary it is that a complainant bringing a claim under the Act need to satisfy a number of proofs:

1.              A protected disclosure under the Act been made;

2.              The worker been penalised by his/her employer arising from the making of that disclosure;

3.              The worker has suffered detriment;

4.              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. 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.

For the most part, his claims are vague and lack any sort of detail and he cannot demonstrate that a protected disclosure has been made.

This submission will focus on the 2018 email and demonstrate that it does not fall within the definition of a “protected disclosure” under the Act for a number of reasons, firstly because it does not disclose ‘a relevant wrongdoing’.

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.”

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 relation to the claims of penalisation this third WRC Complaint is similar to the second WRC Complaint and maintains a scatter gun approach to making accusations against the Institute.

The following claims that Mr Crawley raises in his third WRC Complaint are dealt with already in response to his other complaints in relation to theInvestigation into grievances in 2017, the  “grievances notified within the last year remain unaddressed”which is false and the “Denial of fair procedure in disciplinary process”

        In relation to the disciplinary procedure the fact is  that this process is a direct result of a report by an independent investigator wherein there were a number of findings. Mr Crawley has consistently sought to postpone the disciplinary hearing and when the time to have the hearing arises Mr Crawley produces a sick certificate so the Institute has been unable to move forward.

The claim that suspension is penalisation has been addressed.

Mr Crawley refers to correspondence between him and the FAR Committee. Mr Crawley wrote to the FAR Committee on July 7th and the FAR Committee responded within the timeline set out in the Protected Disclosures Policy. The response from FAR explained:

“The FAR Committee has reviewed your email and has concluded that the complaints made therein do not qualify as a protected disclosure under the Dundalk Institute of Technology Protected Disclosure Policy.

You have informed the FAR Committee that your complaints of July 2017 and October 2020 were both filed under the DKIT Grievance Policy.

The FAR Committee notes the email you provided from Mr Mulvey to you dated 16 June 2021 states: “The Institute is in contact with Mr Philip Brennan directly in relation to this matter.”

The FAR Committee has concluded that this matter is ongoing under the Grievance Policy.”

Mr Crawley again references the Stage 4 Disciplinary Procedures but fails to mention the independent investigation report. For clarity, the findings of the report will be repeated here:

“In running his own business as an accountant in DkIT time and using DkIT resources the Investigation finds that the Respondent: was derelict in his duties; abused/misused the Institute’s property/equipment; failed to comply with a legitimate instruction; and demonstrated a serious and significant non-compliance with a range of formal Institute’s policies and procedures including but not limited to the Double Employment Policy, the Acceptable Usage Policy and DkIT’s Code of Conduct.

The Investigation also finds that, in breaching the confidentiality of the Investigation process, the Respondent is in breach of clause 4.19 of the Disciplinary Procedure and the Investigation’s Terms of Reference.”

At the time of writing, Mr Crawley is currently on sick leave and so cannot attend a disciplinary hearing that would likely conclude his suspension. Remarkably, Mr Crawley was on sick leave when he attended the WRC hearing dated 1 October 2021.

Mr Crawley refers to not receiving the report from his grievance process (that is to beissued by an external body to DkIT) in the context of his disciplinary procedure(which relates to how Mr Crawley used his time and resources) as a penalisation.

However, Mr Crawley fails to demonstrate either (1) detriment caused; or (2) a causal link between these three separate processes that would amount to penalisation under the Act.

The issues in the complaint are set out in detail in the submissions of the parties (and in respect of the other complaints which were heard in the same hearing).

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 26170 and ADJ 33625).

This complaint was made on August 27th, 2021, 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 that period there were the following examples of what the complainant described as ‘continuing penalisation’ which fall to be considered. He says he requested information from both the President and the Governing Body to which there has been no, or an inadequate response, and other alleged penalisation is set out in his submission above.

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, on which he primarily, if not exclusively relied.

(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.

(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 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 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 bearing 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 an 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.

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 Complaint CA-00045872-001 is not well founded.

Protected Disclosures, Penalisation.