Complainant

Respondent

Parties

Conor  Williamson

 David Stone & Carol Stone t/a Ashton Dog Pound and Warden Service

Representatives

Represented by Beibhin Murphy BL, instructed by O'Hanrahan Lally D'Alton Solicitors

Represented by Hugh Hegarty, Management Support Services (Ireland) Ltd

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-00043900-001

05/05/2021

A remote hearing in the case took place on 12 October, 2021. Following said hearing, an issue arose with regard to the correct legislative provision under which the complaint was taken. While the complaint was lodged under the Criminal Justice Act, it appeared from the evidence being advanced that the case was being argued under the Protected Disclosures legislation in respect of the narrative in the complaint form and the case being advanced at the hearing. Given the particular circumstances, I wrote out to both sides following the initial hearing and requested the parties views  with regard to the correct legislative provision under which the complaint was taken. Following receipt of the supplemental submissions on this matter and in the interests of fair procedures, I advised parties that I would reconvene the hearing in order to hear both sides arguments on this issue. A further hearing took place on 7 June 2022 by remote means.

On the preliminary issue, Counsel for the complainant seeks a decision within the framework of the Protected Disclosures Act 2014 as amended rather than the Criminal Justice Act as amended. Counsel for the complainant states that the within proceedings was initiated by way of a non-statutory form. It was submitted that the form as filled out via various dropdown boxes identified the complaint as one related to penalisation for a disclosure relevant to the Criminal Justice Act of 2011 as amended rather than a complaint regarding penalisation for a disclosure pursuant to the Protected Disclosures Act 2014 as amended.

Counsel for the complainant argued that the two Acts are very similar in how they deal with the prohibition on penalisation for disclosures. The interpretation section at the 2011 Act states:  

“penalisation” means any act or omission by an employer, or by a person acting on behalf of an employer, that affects an employee to his or her detriment with respect to any term or condition of his or her employment, and, without prejudice to the generality of the foregoing, includes –

(a)    suspension, lay-off or dismissal,

(b)    the threat of suspension, lay-off or dismissal,

(c)     demotion or loss of opportunity for promotion,

(d)    transfer of duties, change of location of place of work, reduction in wages or change in working hours,

(e)    the imposition or the administering of any discipline, reprimand or other penalty (including a financial penalty)

(f)      unfair treatment,

(g)    coercion, intimidation or harassment,  

(h)    discrimination, disadvantage or adverse treatment,

(i)      injury, damage or loss, and

(j)      threats of reprisal.”

Counsel states that the 2014 Act only differs in one part where (at (b) above in the 2011 Act) the threat of suspension, lay-off or dismissal is not included in the definition of 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:” 

Counsel submits that therefore, if the within complaint fell to be considered under (b) of the definition of penalisation of the 2011 Act, it would clearly fall outside the ambit of the 2014 Act and as such, could not succeed. Counsel stated that the complainant’s evidence included an event of actual suspension rather than the threat of suspension. Counsel states that any amendment of the claim form which would provide for the evidence to be considered and a decision issued pursuant to the 2014 Act cannot therefore be out-ruled on this basis as the complaint, if so proven, remains within the definition of penalisation within the 2014 Act.

Counsel states that as the respondent has set out in its supplementary submission, a complaint under the 2011 Act could only relate to disclosures considered relevant offences for the purposes of that Act. These offences appear at Schedule 2 of the 2011 Act: relating to banking, investment of funds and other financial activities, company law offences; theft and fraud offences; bribery and corruption offences; consumer protection offence; criminal damage to property offences and a competition offence.  Counsel states that it is accepted by the complainant that his disclosure did not invoke any of the offences scheduled to the 2011 Act. Counsel submits that the complainant’s disclosure was made first to his employer and then to An Garda Siochana regarding animal welfare and veterinary pharmaceutical offences only. It was submitted that animal welfare and veterinary pharmaceutical offences are not included in Schedule 2 of the 2011 Act.

Counsel for the complainant states that in order to be considered a protected disclosure and one within the ambit of the 2014 Act, a number of factors must be present as set out in section 5 of the Act:

(1)    For the purposes of this Act “protected disclosures” means, subject to subsections (6) and (7A) and sections 17 and 18, a disclosure of relevant information (whether before or after the date of the passing of this Act) made by a worker in the manner specified in sections 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.”

Counsel submits that the disclosure must be of “relevant information”, which is defined as showing “relevant wrongdoing” which in turn is defined at subsection 3. It was submitted that the definitions relevant to the within case are at (a) “ that an offence has been, is being or is likely to be committed” and/or (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.”  Counsel contends that the nature of the offence or legal obligation is not specified under this Act, therefore the complainant’s disclosure of animal welfare and veterinary pharmaceutical offences is within the broader ambit of the 2014 Act.

Counsel submits that the person to whom the disclosure is made should be considered. The Act requires at section 6 that the disclosure be made to the person’s employer or other responsible person:

“(1) A disclosure is made in the manner specified in this section if the worker makes it –

(a)    to the worker’s employer, or

(b)    where the worker reasonably believes that the relevant wrongdoing which the disclosure tends to show relates solely or mainly- (i) to the conduct of a person other than the worker’s employer, or (ii) to something for which a person other than the worker’s employer has legal responsibility to that other person.”

Counsel submits that alternatively, the disclosure may be made to another person at section 10 of the 2014 Act:

(1)    A disclosure is made in the manner specified in this section if it is made otherwise than in the manner specified in sections 6 to 9 and - (a) the worker reasonably believes that the information disclosed and any allegation contained in it, are substantially true, (b) the disclosure is not made for personal gain, (c) any one or more of the conditions in subsection (2) is met and (d) in all the circumstances of the case, it is reasonable for the worker to make the disclosure.

(2)    The conditions referred to in subsection (1) (c ) are – (a) that, at the time the worker makes the disclosure, the worker reasonably believes that the worker will be subjected to penalisation by the worker’s employer if the worker makes a disclosure in the manner specified in section 6, 7 or 8 (b) that, in a case where no relevant person is prescribed  for the purposes of section 7 in relation to the relevant wrongdoing, the worker reasonably believes that it is likely that evidence relating to the relevant wrongdoing will be concealed or destroyed if the worker makes a disclosure in the manner specified in section 6, (c) that the worker has previously made a disclosure of substantially the same information – (i) in the manner specified in section 6, or (ii) in the manner specified in section 7 or 8, and (d) that the relevant wrongdoing is of an exceptionally serious nature.

(3)    In determining for the purposes of subsection (1)(d) whether it is reasonable for the worker to make the disclosure regard shall be had, in particular, to – (a) the identity of the person to whom the disclosure is made, (b) in a case falling within subsection (2) (a), (b) or (c), the seriousness of the relevant wrongdoing, (c) in a case falling within subsection (2)(a), (b) or (c)

whether the relevant wrongdoing is continuing or is likely to occur in the future, (d) in a case falling within subsection (2)(c), any action which the employer of the worker or the person to whom the previous disclosure was made has taken or might reasonably be expected to have taken as a result of the previous disclosure, and (e)  in a case falling within subsection (2)(c) (i), whether in making the disclosure to the employer the worker complied with any procedure the use of which by the worker was authorised by the employer.

(4)    For the purposes of this section, a subsequent disclosure may be regarded as a disclosure of substantially the same information as that disclosed by a previous disclosure as mentioned in subsection (2) (c ) even though the subsequent disclosure extends to information about action taken or not taken by any person as a result of the previous disclosure.

(5)    In subsection (1)(b) “personal gain” excludes any reward payable under or by virtue of any enactment.

Counsel submits that the complainant in this case asserts that he made two disclosures, first to his employer by way of email dated 26 July 2020 at 14.30. Secondly, the complainant made a disclosure to An Garda Siochana some days later when his email garnered no response from his employer on the serious issues raised. Counsel submits that the complainant relies mainly on the disclosure of 26 July 2020 to his employer to be considered the protected disclosure for the purposes of the within case. However it is submitted that the complainant’s disclosure to An Garda Siochana, as outlined in his oral evidence, satisfies the requirements of section 10 and should also be considered a protected disclosure. Counsel states that the complainant had warned his employer that he would make such a report to An Garda Siochana and activities at the dog pound were subject to a criminal investigation shortly thereafter.

Counsel states that both the 2011 and 2014 Acts set out the prohibition on penalisation for disclosures in very similar terms. Section 20 of the 2011 Act (as amended by the 2014 Act) states:

“(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 – (a) for making a disclosure or for giving evidence in relation to such disclosure in any proceedings relating to a relevant offence, or (b) for giving notice of his or her intention to do so.” Counsel submits that this is almost identical to section 12 of the 2014 Act in prohibiting penalisation whereby it sets out:

“(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.”

Counsel submitted that the case of County Louth VEC v The Equality Tribunal is authority for the proposition that as a non-mandatory or non-statutory administrative form, a change to the form can be made, where McGovern J, albeit obiter, stated: “I accept the submission on behalf of the respondent that the form EE1 was only intended to set out, in broad outline, the nature of the complaint. If it is permissible in court proceedings to amend pleadings where the justice of the case requires it, then a fortiori, it should be permissible to amend a claim as set out in a form such as the EE1, so long as the general nature of the complaint (in this case, discrimination on grounds of sexual orientation) remains the same. What is in issue here is the furnishing of further and better particulars, although, it must be said, in the context of an expanded period of time…”  “Of course, it is necessary that insofar as the nature of the claim is expanded, the respondent in the claim must be given a reasonable opportunity to deal with these complaints and the procedures adopted by the Equality Officer must be fair and reasonable and in compliance with the principles of natural and constitutional justice.”

Counsel submits that in that judgement, the Supreme Court made further observations; “It goes without saying, first, that the duty of the Equality Officer is both statutory and ultimately, delimited by constitutional considerations. As part of fair procedures, it is necessary that all parties be aware, in a timely way, of the case which they must meet. Consequently, it would be wrong, were a situation to evolve in this investigation, where one or other of the parties was under a misapprehension of precisely the range of legitimate enquiry. Second, it is hardly necessary to reiterate that it is not possible for any tribunal, upon which a particular jurisdiction has been conferred by statute, to extend or confine the boundaries of that jurisdiction by an erroneous determination of fact (see State (Attorney General) v. Durkan [1964] IR 279, approved in Kileen v. DPP [1998] ILRM1). There may also be circumstances in which a tribunal, although holding jurisdiction to enter upon an investigation or inquiry, may render its decision a nullity by, for example, a denial of fair procedures.”

Counsel submits that the complainant has given evidence in support of an allegation that he was subjected to unwarranted disciplinary procedures by his employer due to his disclosure to his employer and An Garda Siochana, and his employer’s awareness (as he had openly told them) that he threatened to make such a disclosure to An Garda Siochana.

Counsel maintains that it is not open to the respondents to allege that the general nature of the complaint does not remain the same and reiterate that the correction is an administrative one.

The complainant commenced employment with the respondent in July 2017 as a dog warden. He states that he made a complaint to An Garda Siochana in late July 2020 following the euthanasia of two dogs by kennel hands at the respondent’s organisation. He states that this was after initially making a complaint to his employer on the issue. However, he contends that no action was taken on foot of his concerns. The complainant submits that since he reported the matter to Gardai, several allegations have been levelled against him. He states that on 1 August he reported to management an urgent threat against him by a staff member. He maintains that his van was searched after working hours which was also reported to management but he got no response regarding same.  The complainant asserts that on 4 September, he made an official complaint against a colleague R for threatening and abusive behaviour.

The complainant states that on 12 October, he received an invitation to an investigation meeting with regard to two complaints; (i) refusal to do on-call and (ii) social media comments he put up on Facebook.

The complainant further states that his sick pay entitlements as per his contract of employment were not paid. He states that when he requested his original signed contract and employment handbook, he was informed by management that it was mislaid.

The complainant submits that on 15 December, he received a final written warning from on foot of a sham investigation process.

The complainant states that on 8 February 2021, the company offered him a severance agreement with a non-disclosure agreement as part of it which he did not accept. The complainant states that he was suspended on 19 March as a result of allegations made against him by other staff members for intimidation and threatening behaviour. On 8 May the investigation meeting was due to take place but it had to be postponed as the complainant’s grandmother passed away on 7 May.  The complainant states that subsequently he was docked wages for not being able to attend said meeting as he was at his grandmother’s funeral.

The complainant states that on 1 June, the Director of the respondent organisation wrote to him explaining that the company had lost its contract and that his employment would be transferred to Dublin City Council from 1 July. The complainant states that on 27 June, the Director found him guilty of misconduct and extended his final written warning by 12 months.

The complainant submits that he has been penalised by the respondent for reporting relevant wrongdoings which is in breach of the Protected Disclosures legislation.

The respondent states that the complainant began his employment with the respondent in or about August 2017. It states that the complainant was invited to an investigation meeting following an incident. The respondent maintains it was during that investigation meeting that the complainant made a point of informing the investigator that he was a whistle-blower and in addition, the complainant has on numerous occasions informed the Director of the respondent organisation that he is a whistle-blower. The respondent highlights that it would be prudent to note that beyond the complainant’s assertions, the company has no knowledge or confirmation that the complainant is in fact a whistle-blower. The respondent asserts that since the time of making the disclosure, the complainant was subject to an investigation and disciplinary process for an incident that occurred prior to the alleged whistleblowing which was the subject of adjudication, investigated and disciplined a second time for which he is claiming penalisation, however the respondent states that the process including the appeal was at all times entirely fair. The respondent submits that the complainant was then the subject of another investigation which was instigated on foot of 6 staff members who alleged bullying and harassment against the complainant.

Dispute in relation to overtime 

The respondent submits that it understands that this complaint relates to a dispute that involved all members of staff and an Industrial Relations dispute in respect of on call allowances and Sunday Premiums. The respondent states that this matter was heard and a recommendation was given by the Labour Court on 14 October 2020. The respondent maintains that this complaint does not satisfy the definition of penalisation within the meaning of section 20 of the Criminal Justice Act 2011. The respondent asserts that the dispute in question related to all staff, and as such the complainant was not treated to his detriment in respect of any term and condition of his employment. The respondent further states that the matter was referred to the Labour Court and it was the recommendation of the Court that no on-call allowance should be introduced.

Allegations regarding breach of the Social Media Policy

The respondent states that this claim relates to a number of posts the complainant made on various social media platforms. It states that these posts were extremely derogatory and entirely untrue and in addition, the sum total of the actions of the respondent in relation to these were that the respondent contacted the complainant, reminded him of the social media policy and requested the posts to be removed. The respondent confirms that the complainant complied and no further action was taken. The respondent submits that the complainant cannot show that he was in any way treated to his detriment by the action taken by the employer in relation to the breach of the social media policy, therefore the actions of the employer are not capable of falling within the definition as set out in the Act.

Allegation that the complainant failed to follow a reasonable management instruction 

The respondent outlines that this matter related to the complainant’s refusal to carry out his on-call duties. In this regard, the complainant was issued a final written warning for his actions and his refusal. The respondent states that the matter of the final written warning was appealed and the appeal was given to an independent HR Consultant Hugh Hegarty of Management Support Services(who is representing the respondent in the within case) who determined that the sanction issued was not only fair but lenient in the circumstances. The respondent also highlights the fact that the final written warning was not appealed to the WRC.

Suspension in respect of complaints of other staff

The respondent submits that the complainant was the subject of a complaint by six members of staff who made a complaint of bullying and harassment against him. The respondent states that it has only ten employees. The respondent contends that the nature of the complaint and the specific details as outlined in the original complaint letter were of such a serious nature that as part of the investigation process, it was considered whether or not the complainant should be placed on suspension. The respondent states that a decision was made that there was no way that the complainant could be moved or any staff could be kept apart from the complainant while the investigation was ongoing. The respondent submits that bearing in mind that more than half the staff had lodged the complaint, the only available course of action left to the respondent was to place the complainant on suspension.

The respondent reiterates the point that in order for a claim of penalisation to be upheld, the complainant must be able to show that the action complained of was as a result of making the disclosure. The respondent states that it is clear that the complainant was placed on suspension pending the investigation due to the fact that more than half the staff had made a very serious complaint in relation to the behaviour of the complainant. The respondent categorically states that there is no connection between the suspension and the disclosure. It refers to section 20(3) whereby the Act states that nothing within the definition of penalisation will prevent an employer from taking action that ensures the smooth operation of the business. The respondent states that the placing of the complainant on suspension was done in order to protect the other staff members and only as a result of not being able to separate the complainant from the staff in any other manner.

In conclusion, the respondent states that the complaint of penalisation is without merit and the actions of the employer are entirely justified and do not fall within the definition of penalisation as set out in the Act. The respondent submits that the complainant is the individual who has repeatedly informed the respondent that he is a whistle-blower, however he has done this without being asked and at times in the most unusual of circumstances. It is the respondent’s submission that the complainant has informed the respondent as he believes that in doing so, he is somehow protected from the normal and usual procedures available to an employer to deal with performance and disciplinary issues. The respondent states that in essence, it submits that the complainant feels that he has identified himself as a whistle- blower that he can act in any manner he chooses to at work, and when he discovered that this is not the case, has fabricated and fashioned the idea that he has somehow been treated unfairly, simply because he has not been given carte blanch to do whatever he chooses.   The respondent submits that there is no basis to the complainant’s claims.

Following the initial hearing and the issue that arose with regard to the correct legislative provision under which the complaint was taken. The respondent furnished a supplemental submission on the matter. It was submitted that the claim lodged has been made under schedule 2 of the Criminal Justice Act, 2011.  The respondent’s representative states that Section 20(1) clearly outlines that an employer is prohibited from penalising an employee for making a disclosure in relation to a relevant offence; the relevant offences for the purpose of the Act are set out in Schedule 1 and covers offences relating to banking and investment of funds and other financial activity; company law offences; money laundering and terrorist offences; theft and fraud offences; offences relating to consumer protection and competition offences.

The respondent submits that its position is that the Criminal Justice Act 2011 deals with disclosures, the complainant has made a disclosure and the matter has been heard under the Criminal Justice Act and a decision under that Act is capable of being issued. The respondent states that the correct decision must be that the claim is not well founded. The respondent contends that as to whether or not the more appropriate legislation is the Protected Disclosures Act, 2014, it states that it is not for the Adjudication Officer to remedy the claim or the claim form in the absence of a request by the complainant or their representative.

The respondent further submits that there is no authority, as provided for by the Workplace Relations Act 2015 or section 39 of the Organisation of Working Time Act to amend the form or correct a mistake, where the error is not of either a clerical or administrative nature.

The respondent states that the leading authority in cases of “incorrect legislation” is County Louth VEC v the Equality Tribunal [2009] IEHC 370 and the authority that has been often used to support the position that the WRC complaint form is not a statutory based form and it should be permissible to amend the complaint “where the justice of the case requires it”.. “as long as the general nature of the complaint remains the same”. The respondent submits that in the within case, the justice of the case does not require it. It states that the claim was made under the Criminal Justice Act 2011; the complainant did so while being represented and on the advice and guidance of a solicitor. The respondent asserts that the complainant was at no time disadvantaged nor can it be described in any way that he was for the purposes of the hearing a “lay litigant”.

The respondent further states that a search of the caselaw from the WRC indicates two things, firstly it appears that no case in relation to “incorrect legislation” has been referred to the Labour Court and secondly, the cases of “incorrect legislation” relate to parties who were not legally represented. The respondent maintains that in a situation whereby the complainant was at no disadvantage and on parity with the respondent in terms of legal representation, there can be no requirement to make any amendment to the claim form, in order to ensure justice for the complainant.

The respondent reiterates its position that as outlined in the case in County Louth VEC v Equality Tribunal, the criterion that need to be considered is that the claim can only be amended where the justice of the case requires it. The respondent submits that the justice of this case does not require amendment or correction.       

The complainant relied on the affirmation to accompany his testimony. While the Director of the respondent organisation attended the hearing. He was not sworn and did not give testimony. I note that Mr. Hugh Hegarty of Management Support Services who represented the respondent also had involvement in the investigatory and disciplinary process which the complainant was subject to during the course of his employment.

The first matter for consideration is the preliminary issue with regard to the correct legislative provision under which the complaint was taken. While the complaint was lodged under the Criminal Justice Act, 2011 it appeared from the evidence being advanced that the case was being argued under the Protected Disclosures legislation in respect of the narrative in the complaint form and the case being advanced at the initial hearing. I requested a supplemental submission from both sides on the matter of the correct legislative provision under which the complaint was taken. In the interests of fair procedures and natural justice, I reconvened the hearing in order to allow the parties make their arguments on this point.  Having carefully considered both sides on this matter,  based on the evidence heard and the authority laid down in the County Louth VEC v The Equality Tribunal, I am satisfied that the claim form can be amended where the justice of the case requires it and this is such a case.

The case of County Louth VEC v The Equality Tribunal is authority for the proposition that as a non-mandatory or non-statutory administrative form, a change to the form can be made, where McGovern J, albeit obiter, stated: “I accept the submission on behalf of the respondent that the form EE1 was only intended to set out, in broad outline, the nature of the complaint. If it is permissible in court proceedings to amend pleadings where the justice of the case requires it, then a fortiori, it should be permissible to amend a claim as set out in a form such as the EE1, so long as the general nature of the complaint (in this case, discrimination on grounds of sexual orientation) remains the same. What is in issue here is the furnishing of further and better particulars, although, it must be said, in the context of an expanded period of time…”  “Of course, it is necessary that insofar as the nature of the claim is expanded, the respondent in the claim must be given a reasonable opportunity to deal with these complaints and the procedures adopted by the Equality Officer must be fair and reasonable and in compliance with the principles of natural and constitutional justice.”

In that case, the Supreme Court made further observations; “It goes without saying, first, that the duty of the Equality Officer is both statutory and ultimately, delimited by constitutional considerations. As part of fair procedures, it is necessary that all parties be aware, in a timely way, of the case which they must meet. Consequently, it would be wrong, were a situation to evolve in this investigation, where one or other of the parties was under a misapprehension of precisely the range of legitimate enquiry. Second, it is hardly necessary to reiterate that it is not possible for any tribunal, upon which a particular jurisdiction has been conferred by statute, to extend or confine the boundaries of that jurisdiction by an erroneous determination of fact (see State (Attorney General) v. Durkan [1964] IR 279, approved in Kileen v. DPP [1998] ILRM1). There may also be circumstances in which a tribunal, although holding jurisdiction to enter upon an investigation or inquiry, may render its decision a nullity by, for example, a denial of fair procedures.”

I am satisfied in the within matter that the general nature of the complaint remains the same and the correction being made is an administrative one. I proceed to deal with the complaint under the Protected Disclosures Act, 2014.  

In order to be considered a protected disclosure and one within the ambit of the 2014 Act, a number of factors must be present as set out in section 5 of the Act:

(1)          For the purposes of this Act “protected disclosures” means, subject to subsections (6) and (7A) and sections 17 and 18, a disclosure of relevant information (whether before or after the date of the passing of this Act) made by a worker in the manner specified in sections 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.”

The complainant asserted that he had complained to management initially about the issue of animal abuse but stated that due to the inaction of management, he was forced to report the matter to the Gardai. I note that that the complainant made two disclosures in relation to the euthanasia of two dogs at the Pound, first to his employer by way of email dated 26 July 2020 at 14.30. Secondly, the complainant made a disclosure to An Garda Siochana some days later when he got no response from his employer on the serious issues raised. I note from the submissions made at hearing that Counsel for the complainant states that the complainant relies mainly on the disclosure of 26 July 2020 to his employer to be considered the protected disclosure for the purposes of the within case and that the complainant’s disclosure to An Garda Siochana satisfies the requirements of section 10 and should also be considered a protected disclosure. I note the complainant’s testimony where he stated that he had warned his employer that he would make such a report to An Garda Siochana. I further note that activities at the dog pound were subject to a criminal investigation shortly thereafter.

Penalisation is defined by Section 3 of the Act:

“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 necessary proofs for a claim under the Act are as follows;

(i)             has a protected disclosure under the Act been made

(ii)                has the worker been penalised by his/her employer arising from the making of that disclosure

(iii)               has the worker suffered detriment

(iv)               is there a causal connection between the making of a protected disclosure and the detriment suffered

I note from the testimony of the complainant that on 1 August, he reported threatening and abusive behaviour against him by a colleague. He stated that on 27 August he made a complaint to his employer about his van been searched after working hours but that he got no response from manager. I note that on 12 October, the complainant was called to an investigation meeting with regard to (i) refusal to do on-call duties and (ii) social media comments on Facebook.

I note from the complainant’s testimony that at a later disciplinary meeting, he was docked a day’s pay as he could not attend the meeting as he was in attendance at this grandmother’s funeral.

I note that on 8 February 2021, the complainant was offered a severance deal with a non-disclosure agreement attaching to it which he refused to accept.

Having very carefully examined the totality of the evidence in the within case and based on the testimony provided by the complainant which I found to be cogent and convincing; I find that the complainant has established that he was penalised for having made a protected disclosure with regard to animal welfare and veterinary pharmaceutical offences at the respondent organisation contrary to the Protected Disclosures Act, 2014. In this regard, I am cognisant of the numerous allegations that the complainant was subjected to by the respondent after making the protected disclosure. Having examined the evidence and heard oral testimony, I am satisfied that the complainant was subjected to a spurious investigation and disciplinary process and a suspension of work which was not warranted which amounts to penalisation under the Act. In relation to the complaint of bullying and harassment by a number of colleagues against the complainant; upon review of said statements, I consider that they are contrived and have the hallmarks of an orchestrated campaign by management to intimidate and bully the complainant. It would appear to me that the statements had been rehearsed and I note that a number of these same staff retracted their statements shortly after making them. Based on the testimony of the complainant at hearing and written submissions, the allegations seemed to purport to the complainant staring/glaring at individuals. The complainant gave testimony to state that as soon as he went into work in the morning, he went out in the van to carry out his duties and therefore would not be present at the premises to such an extent so as to justify the purported bullying and harassing other staff members. I also note that the complainant was employed with the respondent since 2017, however many of the issues giving rise to invoking the disciplinary processes seem to have arisen following the complainant making his protected disclosure in July 2020 to his employer and to the Gardai. 

It is noteworthy that the respondent offered the complainant a severance package comprising a non-disclosure agreement in an effort to exit the complainant out of the organisation.      

Based on the totality of the evidence heard, I am satisfied that the suspension of the complainant on foot of the allegations by six staff members of bullying and harassment against the complainant was a form of penalisation. I also find that the investigation and disciplinary process was flawed and I find that the complainant faced retaliation for the earlier reporting of animal abuse and veterinary practices to his employer and to the Gardai.

I find that the within complaint under the Protected Disclosures Act is well-founded. I order the respondent to pay the complainant €18,000 in financial compensation for said breach of the Act. 

Protected disclosure, penalisation