Complainant

Respondent

Parties

George  McLoughlin

Minister for Enterprise, Trade & Employment

Complainant

Respondent

Anonymised Parties

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Representatives

  Self-Represented

 Cathy Smith BL instructed by the Chief State Solicitor's Office

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-00043908-001

06/05/2021

The hearing was conducted remotely hearing in accordance with the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and Statutory Instrument 359/2020 which designates the Workplace Relations Commission as a body empowered to hold remote hearings.

The Complainant swore an affirmation and gave evidence at the hearing. The Respondent did not give any evidence on oath and instead limited its defence to legal submissions.

The Complainant commenced employment on 4 January 2008 up to 8 January 2017 as a Labour Inspector.

It is the Complainant’s claim that the Chief State Solicitor on behalf of the Minister for Enterprise, Trade and Employment  are seeking an Order of Costs against him in High Court proceedings relating to a Judicial Review of three Labour Court Determinations.

As a result, the Complainant claim’s that he has been penalised by his employer for having made a protected disclosure under the Protected Disclosure Act 2014.

It was the Respondent’s submission that the Complainant’s complaint relates to a plea for costs set out in the Respondent’s Statement of Opposition in Judicial Review proceedings initiated by the Complainant before the High Court. The Respondent has pleaded that in the event the Complainant is unsuccessful in his Judicial Review , it will be seeking an order from the court for costs.

It was submitted by the Respondent this is neither penalisation nor a threat of penalisation for having made a protected disclosure. The provision for seeking costs is set out in the Rules of the Superior Court and the Legal Service Regulation Act 2015 and therefore, the Respondent is obliged to plead it in its Statement of Opposition. Therefore, any issue of costs is entirely a matter for the High Court.

Section 12. (1) of the Protected Disclosure Act 2014 provides:

“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.”

With Section 3 of the 2014 Act defining penalisation:-

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 or administering of any discipline, reprimand or other penalty (including a financial 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 issue of whether or not a protected disclosure was made was not before me , as it has been accepted by the Respondent. Therefore, the question arises as to whether or not the Complainant was subjected to penalisation for having made that protected disclosure in relation to the Respondent plea for an order for costs before the High Court in Judicial Review proceedings initiated by the Complainant.

The Labour Court in Aidan & Henrietta McGrath Partnership -v- Anna Monaghan PDDI62  discussed the need for a causal link between the protected disclosure and the penalisation complained of:

 “Thus the detriment giving rise to the complaint must have been incurred because of, or in retaliation for, the Complainant having committed a protected act. This suggests that where there is more than one causal factor in the chain of events leading to the detriment 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.”

Having carefully considered the 2014 Act together with the Labour Court’s explanation of the “but for” test the following is noted;

As of the date of this hearing no decision was made by a High Court Judge around the issue of costs as the Judicial Review proceedings had not been heard. Therefore, no detriment or penalisation has been incurred by the Complainant; and

The decision around costs arising out of the Judicial Review proceedings is entirely a matter for the High Court Judge hearing the case. It is not a matter for the Workplace Relations Commission.

Complaint was not well founded.

Protected Disclosure – Penalisation – Order for Costs