Complainant

Respondent

Anonymised Parties

A Project Co-ordinator

An Educational Institution

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00032293-001

18/11/2019

The Complainant commenced employment with the Respondent as a Project Coordinator in July 2009. He stated that he was subjected to penalisation by the Respondent as a result of having made two protected disclosures, one in September 2017 and another in October 2018.

In or around 26th September 2017, while acting in his capacity as Procurement Agent, as part of his role as a Project Co-Ordinator, on a large consultancy tender, and on dates after this, the Complainant stated that he became aware of what he believed to be irregularities/wrongdoings connected to procurement and tender procedures in the Respondent. As a result, he stated that he made a protected disclosure under the Protected Disclosure Act to his then line manager Mr Z. Following the disclosure, the line manager undertook to report this and other subsequent incidents which arose over the following months.  However, Mr Z did not do so formally until September 2018 when he met with the Respondent’s Director of Human Resources and another member of the University Executive and informed them of wrongdoing.

In or around 30th October 2018, the Complainant submitted a written protected disclosure, under the Protected Disclosure Act, 2014 to the Respondent’s named Disclosure Recipients and then to the Respondent’s Disclosures Committee. The detailed protected disclosure related to what the Complainant believed were irregularities and wrongdoings relating to tendering and procurement processes. The Respondent’s Disclosure Committee engaged an external company to investigate the protected disclosure made by the Complainant and he co-operated fully with the investigation.

Despite his co-operation the Complainant alleged that, as a direct result, and in retaliation for having made the protected disclosure, the Respondent engaged in the most egregious form of treatment by an employer against an employee for him having made a protected disclosure. It was also stated that the Respondent was, at all material times, fully aware of this behaviour and failed/refused, neglected, or omitted to provide protection from this behaviour and to provide a safe working environment for the Complainant.

The Complainant stated that he initially engaged in a grievance process with the Respondent, however, by late May 2019, he became aware that the behaviour of the Respondent was not simply a case of bullying but targeted attempts to discredit him as a direct consequence of having made the protected disclosure. The complaint form relating to penalisation was then filed in November 2019.

The Complainant stated that he knows of no other reason for the attack on his character, his integrity, and his credibility, other than the fact that he made a protected disclosure in relation to irregularities and/or wrongdoings. In addition, the Complainant stated that he knows of no other reason for the Respondent’s failure/neglect and/or omission in providing a safe working environment and prevent this behaviour, other than the fact that he made a protected disclosure in relation to irregularities and/or wrongdoings. 

The adverse treatment which he was subjected to were separated into six categories:

                                            i.          Limiting his role and failure to allocate work appropriate to his position.

                                          ii.          Placing him in a vulnerable position by attempting to involve him in a flawed and ‘irregular process’

                                        iii.          Sustained attempts to alienate him from fellow employees and professionals.

                                        iv.          Attempts to create uncertainty, to undermine and discredit his character and integrity

                                          v.          Failure /refusal to provide a safe working environment.

                                        vi.          Delays and handling of the complaint and a delay in ratifying the external Report which has been with the Respondent’s Disclosure Committee since July 2020 with no final report completed for the attention of the Chairperson of the Governing Authority.

The Complainant first commenced employment with the University on a fixed term basis between July 2009 to 2012 as a Site Engineer and Project Coordinator. He was made a permanent employee in this position with effect from 1 September 2012.

When Ms X commenced in the role of Head of Function in 2017, she sought to change work practices in terms of what was to be outsourced and to introduce new ways of working within the office where the Complainant worked.

During the period from her appointment until his retirement in June 2019, the Complainant’s line manager Mr Z reported directly into Ms X. Further to his retirement, the Complainant along with his two colleagues in the office reported directly to Ms X.

On 11 September 2018, the Irish Federation of University Teachers (IFUT) met with the Respondent’s Director of Human Resources to discuss issues the Complainant had raised in relation to his role and the related duties. Further to this meeting the HR Director requested to meet with Mr Z to discuss two issues, namely (1) the interpersonal relationships in Ms X’s office and (2) the question of whether the tasks were within the job descriptions of the members of the office. While Mr Z explained to the HR Director at this meeting that he felt Ms X was interfering in his work and with his team at no point in this exchange did he state that a protected disclosure was being made nor did he say anything that could be so interpreted.

On 30 October 2018, the Complainant sent a letter to the Secretary of the Respondent, making a disclosure under the Protected Disclosure (Whistleblowing) Policy. This disclosure related to procurement matters within Ms X’s office and in particular, the execution of a number of design team competitions. Because of the content of the disclosure, it was referred to the Chair of the Governing Authority to arrange for an appropriate Disclosures Committee and a copy of the complaint was sent to each member of the Disclosures Committee.

On 5 February 2019, a formal meeting of the Disclosures Committee took place and an

initial examination of the disclosure was carried out. After due consideration, it

was decided that the matters at issue required an investigation. A subsequent meeting

was arranged where it was decided to appoint an external company to conduct the investigation. This is in line with the Policy that states “If the Disclosures Committee decides aninvestigation should be undertaken, the Committee shall have discretion in deciding

what procedure(s) should apply and may delegate the task of carrying out any

investigation.”

Following a meeting with the external company chosen to conduct the investigation, the Respondent’s Secretary met with Ms X on 25 February 2019 to advise her that there had been a disclosure relating to her department and that he had to retrieve relevant files from her office for the investigation. The Secretary did not then or at any other time identify the person who made the disclosure. When advised of the disclosure, the VP indicated that she believed it had been made by another person, whom she named. The Secretary did not advise her to the contrary. The Complainant was made aware of the appointment of the external company to conduct the investigation and he initially reacted positively to this information. Although he subsequently objected to the choice, the investigation proceeded and commenced in July 2019.

Separately, in July 2019, IFUT emailed the Respondent on behalf of the Complainant, Mr Y and Mr P requesting a meeting to discuss “concerns centre[d] around the manner in which theyare being treated in their employment.” The HR Director subsequently met with IFUT and the three employees in August 2019. She later met with Ms X to inform her that a formal grievance had been raised by three members of staff against her and that a written account would be provided that she would be able to respond to.On 21 August 2019, the Complainant and his two colleagues wrote to the HR Director to “outline the areas of concern that we have in our working with Ms X.” In November 2019, IFUT confirmed verbally to the Respondent that the Complainant would not be progressing his grievance.   

The Respondent highlighted that the matters raised in August 2019 constituted a personal grievance, were not described as or contended to be a protected disclosure, were not treated as a protected disclosure, were not requested to be so treated, and fall outside of the definition of “relevant wrongdoing” by reason of the exclusion of same by section 5(3)(b) of the Act.

THE LAW

The Protected Disclosures Act at Section 2 clarifies that 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.

The Act defines a protected disclosure at Section 5 as follows: 5. (1) For the purposes of this Act “protected disclosure” means, subject to subsection (6) and sections 17 and 18 , a disclosure of relevant information (whether before or after the date of the passing of this Act) made by a worker in the manner specified in section 6 , 7 , 8 , 9 or 10 .(2) For the purposes of this Act information is “relevant information” if—

·       (a) in the reasonable belief of the worker, it tends to show one or more relevant wrongdoings, and(b) it came to the attention of the worker in connection with the worker’s employment.

(3) The following matters are relevant wrongdoings for the purposes of this Act—

·       a)that an offence has been, is being or is likely to be committed, b)that a person has failed, is failing or is likely to fail to comply with any legal obligation, other than one arising under the worker’s contract of employment or other contract whereby the worker undertakes to do or perform personally any work or services, c)that a miscarriage of justice has occurred, is occurring or is likely to occur, d)that the health or safety of any individual has been, is being or is likely to be endangered, e)that the environment has been, is being or is likely to be damaged, f)that an unlawful or otherwise improper use of funds or resources of a public body, or of other public money, has occurred, is occurring or is likely to occur, g)that an act or omission by or on behalf of a public body is oppressive, discriminatory or grossly negligent or constitutes gross mismanagement, or h)that information tending to show any matter falling within any of the preceding paragraphs has been, is being or is likely to be concealed or destroyed.

(4) For the purposes of subsection (3) it is immaterial whether a relevant wrongdoing occurred, occurs or would occur in the State or elsewhere and whether the law applying to it is that of the State or that of any other country or territory.(5) A matter is not a relevant wrongdoing if it is a matter which it is the function of the worker or the worker’s employer to detect, investigate or prosecute and does not consist of or involve an act or omission on the part of the employer.(6) A disclosure of information in respect of which a claim to legal professional privilege could be maintained in legal proceedings is not a protected disclosure if it is made by a person to whom the information was disclosed in the course of obtaining legal advice.(7) The motivation for making a disclosure is irrelevant to whether or not it is a protected disclosure.(8) In proceedings involving an issue as to whether a disclosure is a protected disclosure it shall be presumed, until the contrary is proved, that it is.

Section 12(1) of the Act provides :-

12. (1) An employer shall not penalise or threaten penalisation against an employee, or cause or permit any other person to penalise or threaten penalisation against an employee, for having made a protected disclosure.

FINDINGS

In the first instance, I note the Complainant’s assertion that a protected disclosure was made by him to his line manager Mr Z in September 2017. There was no evidence presented however to suggest that anyone except Mr Z was aware of this alleged protected disclosure until September 2018 when he (Mr Z) met with the Respondent’s HR Director, notably at her request following a meeting which she had with the Complainant’s union, and allegedly informed her of it.

Given that Mr Z did not attend the hearing to give evidence and that the Respondent’s HR Director denied in her evidence that she had been made aware of a protected disclosure by Mr Z in September 2018, I find that there was no direct evidence presented to suggest that anyone, with the exception of Mr Z, was aware of the first alleged protected disclosure. As there was no evidence presented of any penalisation of the Complainant by Mr Z and that the only allegations of same were made against Ms X, the fact that that a protected disclosure may have been made in September 2017 is, in my view therefore irrelevant for the purposes of the instant case.

I am satisfied from the evidence presented to me however that a protected disclosure was made in October 2018 and note that this was also accepted by the Respondent. Having established that such a disclosure was indeed made, I must now examine whether or not the Complainant was penalised as a result of this.

The Labour Court has previously considered the test which a Complainant under the Act must satisfy in order to establish that he or she has suffered penalisation within the meaning of section 12(1) as a consequence of having made a protected disclosure i.e. in order to establish a causal connection between their protected disclosure and the detriment complained of. In Aidan & Henrietta McGrath partnership v Anna Monaghan (PDD162) the Court stated:

“… the detriment giving rise to the complaint must have been incurred because of, or in retaliation for, the Complainant having committed a protected act. This suggests that where there is more than one causal factor in the chain of events leading to the detriment complained of the commission of a protected act must be an operative cause in the sense that “but for” the Complainant having committed the protected act he or she would not have suffered the detriment. This involves a consideration of the motive or reasons which influenced the decision maker in imposing the impugned detriment.”

In order to establish a a causal connection between the protected disclosure and the penalisation in the instant case, the first logical step is to examine whether Ms X, who was the only party identified by the Complainant to have allegedly subjected him to penalisation, was actually aware of the disclosure.

While I noted the Complainant’s conviction that Ms X “must have been aware” of the disclosure, there was no concrete evidence presented by him during the hearing to suggest that she was. I also noted the evidence from Mr Y, who worked in the same office as the Complainant and who asserted that “everyone” was aware of the protected disclosure but when questioned by me stated that he had been informed of it directly by the Complainant and provided no evidence to suggest that Ms X knew about it. It was also notable that, when made aware of the protected disclosure by the Secretary of the Respondent in February 2019, Ms X had suggested to him that the disclosure had been made by someone other than the Complainant. While I recognise that the identity of the Complainant as the person who made the disclosure probably became obvious to Ms X when she was interviewed by the company who conducted the investigation into the matter, this interview was not carried out until 25th November 2019, seven days after the Complainant referred the complaint to the WRC.

On the basis of the evidence from the aforementioned witnesses, I am satisfied that no evidence was presented to me to suggest that Ms X was aware that the Complainant made a protected disclosure.

As well as there being no evidence presented during the hearing to suggest that Ms X was aware of it, I am also satisfied both that any alleged mistreatment of the Complainant predated the referral of the protected disclosure in October 2018 and was not confined solely to him.

Specifically, I noted that, although the Complainant’s direct line manager Mr Z did not retire until June 2019, the reporting lines were somewhat blurred and it was evident that Ms X had significant involvement with Mr Z’s three direct reports when she assumed the role of Head of Function in 2017. It was also clear from the evidence presented by both the Complainant and Mr Y, who worked in the same office, that there were significant difficulties in the relationship with Ms X almost from the beginning of her tenure. Indeed, it is notable that both Mr Y and another colleague Mr P, who worked in the same office, made bullying complaints against Ms X, which were subsequently largely upheld following an external investigation. It is clear therefore that the Complainant was not the only employee who was mistreated by Ms X and that allegations of same were made by all of her direct reports with the exception of Mr Z who retired in June 2019.  While I did note Mr Y’s assertion that Ms X treated the Complainant more egregiously than either him (Mr Y) or Mr P, he stated that this was “because he (the Complainant) stood up to her more” and there was no evidence presented by him to suggest that the alleged treatment of the Complainant was any worse following the protected disclosure having been made.

Given that no direct evidence was presented to indicate either that Ms X could have been aware of the alleged protected disclosure made in 2017 because Mr Z told no-one about it or to suggest she knew that the Complainant had made the written protected disclosure in October 2018 and that there was no causal connection between the alleged mistreatment of the Complainant and his making of the protected disclosure, I find that the Complainant was not penalised as a result of it.

As well as stating that he was penalised by Ms X, the Complainant’s also alleged that the Respondent did not provide a safe place of work for him and that this constituted penalisation. While in his submission, he highlighted delays that were caused by the Respondent in 2020, I can only address matters that happened prior to the referral of this complaint on 18 November 2019. In this regard, I noted that the protected disclosure made in October 2018 was investigated in line with the Respondent’s procedures and that the grievance in July 2019 was taken seriously, which was demonstrated by the attendance of the HR Director at a meeting with him and his colleagues along with their union representative. It is also notable that although the Complainant allegedly made a protected disclosure to his line manager in September 2017, he did not follow up with him at any stage over the following 12 months to see if it was being progressed. In addition, I noted that, unlike his two colleagues, the Complainant inexplicably did not pursue the bullying allegations he made against Ms X in July 2019.

In summary therefore, I find that, while the Respondent’s acted properly and in accordance with their own procedures, there was more the Complainant could have done himself to progress the issues he allegedly had.

Protected disclosure; causal connection