Complainant

Respondent

Parties

Louis  Reardon

Minister for Agriculture, Food and The Marine

Complainant

Respondent

Anonymised Parties

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Representatives

Mr. Darach McNamara BL instructed by Sean Costello -  Sean Costello Solicitors

Ms Sarah-Jane Hillery BL instructed by Ms. Eileen Burke -  The Chief State Solicitor’s Office.

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00041519-001 WITHDRAWN

11/12/2020

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

CA-00041519-002

11/12/2020

The Complainant is a Veterinary Inspector (a professional grade within theDepartment) and commenced permanent employment with the respondenton 15 February 1999. The Complainant was assigned to the Department’s Investigations Division, which plays an important role in safeguarding the agri-foodindustry and the Department. It focuses on serious incidents of noncompliancewith the relevant legislation which pose reputational risk toboth the industry and the State.

By way of letter to the Minister for Agriculture, Food and the Marine, dated 2 August 2017 the Complainant made protected disclosures to the Minister detailing significant concerns in what he alleged was political interference by certain politicians in the prosecution of cases under his remit. The Complainant submits that he was penalised for making such disclosures by way of involuntary assignment to the Wildlife Service of the Department, which amounted to a loss of status and humiliation for him.

The Respondent submits that the Complainant has not established facts which show that penalisation has occurred. Furthermore, without prejudice to the foregoing, the Respondent contends that if such detriment is found to be established, which the Respondent denies, then such a detriment was not as a result of having made a protected disclosure in 2017 but was as a result of a requirement for mobility within the division in which the Complainant was working arising out of a review of that division. The Respondent accepts that protected disclosures within the meaning of the Protected Disclosures Act 2014 were made by the Complainant in a letter dated 2 August 2017.

Summary of the Evidence of the Complainant:

On the 3 August 2017, the day after the Complainant made the protected disclosures, Pat Flanagan, Head of the Investigations Division, met with the Complainant and informed him that he had been told by the Director of Veterinary Services, Mr Michael Sheehan that he, the Complainant, was eventually going to be transferred from the Division and suggested that a move to the Wildlife Unit could be facilitated. He said the suggestion came “totally out of the blue” and he had never demonstrated an interest in wildlife. When the Complainant replied that he had no interest in such a move, Mr Flanagan informed him that, in that case, the Mobility Policy would be used to transfer him.

 On 4 August 2017, the Complainant emailed Mr Sheehan refusing his offer of a move to the Wildlife Unit and informing the latter that he was quite happy to continue in his then current position. The Complainant received no response to this email.

Ms Eilis O’Connell, an Assistant Secretary at the Department, was tasked with investigating the Complainant’s protected disclosures. The Complainant states that this was carried out intermittently over two years. Ms O’Connell met the Complainant on 22 January and again on 21 February 2018 when she told him that she could find not find any evidence of wrongdoing arising out of his allegations. The Complainant stated he was “flabbergasted” at this outcome.

The Complainant received a letter from Mr Kevin Galligan, Head of Human Resources dated 15 June 2020 (exhibited) where the Complainant was informed that he had been identified as one of the longest serving officers of the Investigations Division. The letter went on to state that, in accordance with the Department’s Mobility Policy and the outcome of a review of the Investigation Division, the Complainant was being reassigned from his current role to duties in AMT South with effect from the 29 June 2020. The Complainant stated this made no sense to him as there was no consultation and had very little knowledge of the purported 2018 review of the Investigations Division. He stated that it was also firmly established that the Mobility Policy within the Department did not extend to Professional Grades. His understanding, which he asserted was clearly established, was that professional staff moved purely on a voluntary basis only.

The Complainant referred to correspondence on the manner of his transfer from his trade union, The Veterinary Officers Association (VOA), where the union’s concerns were voiced at the manner of his transfer, but the Complainant stated that the Respondent did not meaningfully engage on his grievance because the Minister had signed off on it and it was essentially a fait accompli. By way of email reply to the concerns raised by the VOA, Mr Galligan stated that the transfer was being implemented “solely on foot of the findings in the Review of the Investigations Division”.  

The Complainant had received no notice that this was being discussed within the Department nor the Division, and there was no consultation with him prior to receiving the letter from Mr. Galligan. It was also a surprise to him that though the transfer purported to be enacted under the Mobility Policy, a recent circular to staff had advised that no moves would occur due to the Covid-19 restrictions which were in place at the material time.

The Complainant moved to the Wildlife Division of the Department, and while he acknowledges that work in the Department is valuable, he felt isolated and humiliated. He exhibited an email of 26 June 2020 to his new Department Head, Mr Morgan Lyons, where he stated that he had been sitting in the office with nothing to do.

The Complainant stated that the move made no business sense, and he was left feeling that he had done something wrong. He spent 20 years acquiring a new skillset in an extremely important part of the Department’s work. He was told he was very good at his job, and he now felt he was “thrown in the dustbin”.  He submits he experienced a loss of status because he was transferred out of a prestigious job. He was left feeling humiliated and embarrassed after an otherwise unblemished record in the civil service, as a result of making protected disclosures.  He had to receive medical treatment for the effects and was prescribed anti-depressants for the first time in his life.

Summary of the cross-examination of the Complainant by the Respondent Counsel:

The Complainant accepted that there was a mobility policy incorporated into his original terms of employment 1999, however, he disputed the application of this policy and stated that involuntary transfer never applied to Veterinary Officers, as was established in a workplace agreement with the VOA. He acknowledged that involuntary transfer occurred in the past in exceptional circumstances, the last being the Foot and Mouthy outbreak.

It was put to him that that there was a review initiated in the Division in 2017 to “freshen up” the Division, and that this initiative was started before he made his protected disclosures and, furthermore, he was told on various occasions that mobility as a concept would apply to professional grades as a result of this review. The recollection of the Complainant was that he was never informed or consulted about such a plan. He did not accept either a suggestion that such a policy was developed to further the careers of veterinary officers who might be stuck in positions for a number of years. He stated that he felt his career came to a “shuddering halt” as a result of the policy being directed towards him.

It was also put to the Complainant that three years had passed since his protected disclosures and his move to the new Division, that no penalisation, as might be described was directed at him in that period. He replied that he was targeted for harassment over that period by senior members of management.

Counsel for the Respondent stated that Mr Tim Drea, the Divisional Head who was in situ when the Complainant was re-assigned, would say that there was a reduced workload at the time in the Division. The Complainant disagreed. He accepted that the pandemic impacted on field work but did not impact on the voluminous amount of paperwork involved in closing files. He furthermore stated that there were three active investigators in the Division at the time which he asserted was an insufficient number for the considerable amount of work involved.

It was put to the Complainant that Mr Drea and Mr Galligan will give evidence that they both were not aware of the fact that the Complainant had made protected disclosures and that those who were made aware, out of necessity, were sworn to strict confidence on the matter. The Complainant said that at least three members of the Steering Committee Review (hereinafter “the Steering Group”) who had decided to implement the policy of involuntary transfer, included Ms. O’Connell, who investigated the disclosure, and also a senior management figure who was actually named in the disclosures. The other person was the designated person for receipt of protected disclosures within the Department.

It was also put to the Complainant, that Mr Morgan Lyons will say in evidence that he (the Complainant) was uncooperative and that there was sufficient work in his new assignment to keep him busy. The Complainant denied this and said that Mr Lyons had said to him that he felt sorry for the Complainant because he felt he was treated badly and also that Mr Lyons quipped if he had a crossword to do in the office.

Summary of the evidence of Mr John McConville – Veterinary Inspector in the Investigation Unit March 2003 – June 2020:

The witness described himself as a colleague of the Complainant at the material time. He stated that Mr Pat Flanagan rang him in August 2017 telling him that mobility was going to happen and suggested that he might like to take up a Superintendent post somewhere else. He said that Pat Flanagan told him he was only the messenger in this conversation. His understanding of the conversation was that if he did not take up the position offered, he would be shifted somewhere else. He said he knew nothing about a mobility policy or review of the team.

The witness outlined how he had been involved in a tendering process previously with regard to the procurement of tags for identifying animals. He described how he was concerned that the quality of a tagging system favoured by the Department was in his opinion not up to standard and could be easily detached with the right tools. He felt that if this type of tag was accepted then it defeated the whole purpose of the tagging process. He explained that he showed that the tag could be opened and closed with “very little evidence” that the tag had been tampered with. This was an “absolute no-no”, according to the witness. Without a good tagging system, the witness opined, you cannot stand over the authenticity of any animal coming through the system. The witness claimed he resigned from the committee as it was “pushing ahead” with selecting a tagging system which had “failed” during testing. He said when he raised concerns, he was told “to pull on the green jersey” and he felt he was deemed troublesome when he declined.

The witness stated that the decision to move the Complainant made no sense. It was just the two of them who were left to do very complex investigative work. He said the Complainant had spent years developing a specialist expertise. When the Complainant was moved out "the capacity for the department to tackle that sort of criminality was gone". He said the proof that the expertise was lacking came when six or seven files the Complainant had been working on were "shelved or binned" because the expertise to investigate them was no longer there.

In cross-examination on the issue of the phone conversation with Pat Flanagan, it was put to the witness that it was fair for Pat Flanagan to mention mobility.  The witness replied that it was a friendly phone-call, the witness accepted that he accepted that the conversation was friendly, but he still felt that the message was that he was a smart fellow and should read between the lines.

The witness accepted in further cross-examination by Counsel that the tender competition for tags was in 2016 and that his transfer was four years later. He also accepted that he did not chose to make a protected disclosure on the issue.

Summary of the Evidence of Mr John Higgins ex-President of the Veterinary Officers Association (VOA) and Veterinary Inspector:

The witness stated that he was a veterinary inspector since 1996 and that he was ex-President of the VOA.  The witness said it had always been his understanding that the department’s mobility policy did not apply to veterinary grades and that this had been agreed with the VOA. When asked for his reaction to news of the Complainant’s transfer, he said was very surprised. He stated that he had never heard that happen before and he was very surprised at the fact that it could happen. He said that prior to that, any vet who wanted to transfer would request a transfer on a voluntary basis.

In cross-examination the witness acknowledged that the agreement does not say that involuntary re-assignment can never happen and that there were exceptional circumstances as happened at the last Foot and Mouth outbreak when vets were shifted to Border counties.

Summary of the Complainant’s Submitted Legal Argument:

The Complainant contends that he was penalised for making a protected disclosures under the Act, where penalisation is defined as follows under Section 3.2 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;

Having made protected disclosures on the 2 August 2017, the Complainant was informed on 3 August 2017 that he was to be transferred and was asked by Mr Michael Sheehan, through his manager, Pat Flanagan, whether he would be interested in a move to the Department’s Wildlife Unit. The complainant refused this offer by email on 4 August 2017. The Complainant submits that the fact that the offer was made via a conversation with Mr Flanagan and that there was no response to his refusal email is significant. The Complainant contends that the Respondent did not wish to formalise the communications in circumstances where it was clear that steps were being taken immediately after the complainant’s protected disclosures of the 02 August 2017. In that regard, the Complainant submits that the decision to transfer the Complainant was no coincidence. Rather, it was made as a knee jerk reaction to the embarrassing allegations that the Complainant had made. In order to create the impression of regularity, the Complainant argues that when he showed no interest in the transfer or dealing with the matter informally, the Respondent put in train a process that would ensure, eventually, that the complainant would be transferred out of the Division despite the fact that he had no wish to do so.

Addressing Mr McConville’s evidence, the Complainant asserts that the Respondent’s willingness to deploy the Mobility Policy in this irregular manner is also evidenced by Mr McConville’s interaction with Mr Flanagan later in August 2017. That exchange shows, the Complainant submits, that the Respondent would use the policy to move staff on from the Department whom it no longer wished them to work there. The veiled threat to Mr McConville was clear: if he did not take up a Senior Veterinary Inspector position outside the Division, he would be moved under the Policy. The Complainant submits that this is exactly what happened to him.

 The Complainant submits that Tim Drea was tasked with progressing the Respondent’s decision to transfer the complainant. Mr Drea deployed the Mobility Policy to seek to regularise what the Complainant asserts was a highly irregular and unprecedented step. This was despite the fact that the Mobility Policy did not, and does not, apply to professional grades such as that held by the Complainant. The Respondent’s reliance on the Policy was, therefore, highly irregular from the outset and in breach of the both the Policy and the Civil Service’s Mobility Scheme with which it was aligned.  

Prior to receipt of the letter of the 15 June 2020, informing him that he was to be the subject of the transfer, there was no contact with the Complainant on the matter of transfer, other than the informal contact with Mr Flanagan on 3 August 2017, with the Complainant regarding the transfer or the application of the Mobility Policy. The Complainant submits that this was despite the fact that the Policy required openness and consultation with staff regarding its potential application and further required a minimum notice of four weeks to be given prior to a transfer.

 The Complainant asserts that it should be noted that the Steering Group had met on 20 June 2018 where it was emphasised that positions within the Division should be ring-fenced from Departmental policies such as mobility given the specialised nature of the work and the skills required to perform it. Yet, in the teeth of this acknowledgment, the Respondent was prepared to employ the mobility policy to cut this fence which was supposed to protect the Complainant.

 The Complainant asserts that it should also be noted that the Complainant’s transfer was effected despite the freeze imposed on such transfers by the Respondent in response to the Covid-19 pandemic. As was made clear in the Civil Service Mobility Scheme Update issued by the Department of Public Expenditure and Reform in June 2020, offers of mobility were placed on hold until further notice. The Complainant argues that this departure from the governing rules shows that the involuntary transfer of the Complainant from the Division was another example of highly irregular behaviour.

When the Complainant, through his trade union representative’s email of 19 June 2020, and his own of the 26 June 2020, pressed the Respondent on the grounds of transfer, the Complainant asserts that the Respondent was forced to change its story. The Complainant contends that whilst the letter of 15 June 2020 clearly invoked the Mobility Policy as being the rationale for the transfer, Mr Galligan’s email of 26 June 2020 contains, what the Complainant argues, was a remarkable volte face. It stated that the decision was made “solely on foot of the findings in the Review of the Investigations Division”.  Mr Galligan then quoted the first sentence of paragraph 20 of the said Review, but the entire paragraph is reproduced below:

“In line with the broader Civil Service and Departmental HR policies mobility will apply to the staff of the Division, albeit on a more lengthy rotation than standard, given the specialised nature of the work. An annual workforce plan for the Division will be formulated by the Head of Division in collaboration with the Personnel Officer to manage these staffing arrangements.”

The Complainant submits that the above explanation was an attempt to distance the Respondent from the Mobility Policy that it had previously relied upon. The Complainant contends that this was done after the Respondent realised that its reliance on the Policy was unsustainable as had been pointed out by the Complainant and his trade union official. Furthermore, the Complainant submits, when the above paragraph 20 is examined, it will be seen that the decision still lacks foundation. The Complainant submits that the above paragraph 20 is so broad and vague as to lack any meaning. Also, the paragraph clearly invokes reliance on the broader Civil Service and Departmental HR mobility policies. Yet, these very policies clearly state that they do not apply to professional grades.

The Complainant asserts that ultimately, paragraph 20 was seized upon by the Respondent to apply a new unofficial mobility policy that bore no resemblance to the one set out in the formal 2016 document, or the Civil Service Scheme aligned to it. The sentence omitted from Mr Galligan’s email is also noteworthy. The Complainant was never made aware of the applicable “annual workforce plan for the Division” at any stage whilst he was employed there. Again, the Complainant argues, it was significant that this was something over which Ms O’Connell had control.

The Complainant further submits that it should be noted that several of the Complainant’s colleague veterinarian inspectors had longer service within the Department and, yet none of them, with the notable exception of Mr McConville, were singled out for an involuntary transfer. The Complainant contends that Mr McConville was transferred, not because he made a protected disclosure but because he would not move out of the Division voluntarily.

The Complainant’s exhibited FOI requests have also yielded confirmation:

 (a) that no veterinary inspectors have been compulsorily moved pursuant to the Policy, and (b) that the Department conducted no enquiries regarding the length of service of veterinary inspectors employed thereby. The Complainant argues that this   information is consistent with the Complainant’s submission that he was singled out for involuntary transfer because he made protected disclosures.

 The Complainant submits that he was presented with a fait accompli with no opportunity to discuss the proposal or make any submissions regarding his suitability or desire in this regard. The Complainant submits that the decision to transfer the Complainant was taken in secret with no attempt to involve the Complainant. The Complainant contends that Ms O’Connell, who was investigating the Complainant’s protected disclosures was also involved in the implementation of the decision to transfer the Complainant under the Policy and against his wishes. The Complainant submits that this failure to the adhere to the Policy and to direct the Complainant to take up a transfer is consistent with the Respondent’s desire to penalise him for having made the protected disclosures.  If the decision to transfer was genuine, the correct procedures would have been followed and the Complainant would have been consulted and communicated with well in advance of 15 June 2020.

Summary of the Closing Statement of Mr Darach MacNamara BL, for the Complaint.

Counsel said the disclosure was a "significant" and "embarrassing" event for the Department and senior management decided in 2017 that it would move the Complainant out of the investigations unit and so they began a review that year that resulted in Mr Reardon's transfer three years later.

Counsel said the Complainant has proven his case. He had “put his head above the parapet” on 2 August 2017 when he made his protected disclosures to the Respondent, and it set in chain a series of events that was always going to result in enforced transfer. The Adjudicator was asked to look at the evidence that on 3 August 2017, the day after the disclosure was made, that Mr Sheehan met with Pat Flanagan in Nenagh before Mr Flanagan’s undocumented meeting later that day when Mr Flanagan suggested to the Complainant that he should move. Counsel asserted that no credible reason was given for Mr. A’s visit to Mr Flanagan and that the Respondent’s wants us to believe that this “out of the blue” meeting was purely coincidental with the fact of the Complainant making protected disclosures the day before. Counsel argues that the assertion from Mr Flanagan was in essence stating that unless the Complainant moved “the mobility policy was coming to get you”. Counsel said that the department waited three years to "give the impression" that it had acted correctly. He said there was never a “smoking gun” in these cases and that facts have to be found on the very strong inferences in this case. Counsel put forward the fact that the membership of the Steering Group was made up of three people who knew about the protected disclosure through their roles handling whistle-blower complaints. He also said that the report of this Steering Group was exhibited at the hearing as an unauthored Microsoft document with no official heading or logo and he questioned its provenance. Furthermore, the minutes of this committee were received only after the Complainant’s FOI request, but they did reveal an important recording of a sensitivity towards the operation of the mobility clause when it came to the efficient investigations of suspected wrongdoings in the sector. Counsel concluded that the inescapable conclusion had to be that the Complainant was penalised for making what turned out to be embarrassing protective disclosures for the Respondent.  

Summary of the Evidence of Kevin Galligan, ex Human Resources Manager and now head of Corporate Affairs:

The witness gave evidence that he was the Human Resources manager from May 2018 to December 2021. He is now Head of Corporate Affairs with the Department.

The witness said he had no role in formulating the 2018 Steering Committee Review of Investigations Division which would allow the department to “freshen up” the team while allowing more professional opportunities for senior and junior staff. However, as Head of Human Resources, he was tasked with coming up with criteria to identify which members of the Investigations Unit should be transferred.

 He said he did not know about the protected disclosures and the criteria he developed was that those who had the longest service should be selected. This was based mainly on long service because he believed that there was an “attrition” effect on those who worked in that division, it being a high-pressure environment where staff were regularly finding themselves in confrontational situations because of the nature of the job. He wanted to allow the longer serving members to "develop their careers" and open up opportunities for people moving into the unit.

The witness said he had no knowledge of the protected disclosures by the Complainant at the time of selecting the Complainant for re-assignment. The witness acknowledged that the Mobility Policy within the Department did not apply to the professional grades.

In cross-examination on the matter of his letter of re-assignment to the Complainant of 20 June 2020, the witness accepted in hindsight that he should not have put emphasis on the Mobility Policy which he agreed did not apply to the Complainant but that he should have relied on the Steering Group recommendation in the wording of that letter. The witness agreed that involuntary transfer is a possible disciplinary sanction for civil servants, but he added that "wasn't the case here".

The witness accepted that there was no evidence that the Complainant suffered any ill-effects from his work within the Division.

Summary of Evidence of Mr Tim Drea – Head of the Investigations Division 2018 to present:

The witness said he had taken over from Pat Flanagan as Head of the Investigations Division when he retired in 2018. He took responsibility for the task of implementing the 2018 Steering Committee review. He had been aware that there were tensions in the Division, and he found it difficult to work with the Complainant, whom he found not to be a team player.  He attributed this to the fact that he felt the work was very stressful on the Complainant. The witness said the Complainant was "very good" at his job and was very experienced and losing him presented problems for the unit. The witness admitted he didn’t know “about the nuances” of policies around transfers for people at the professional level, and that he went ahead with imposing the transfer after speaking to the HR department.

In cross examination the witness acknowledged that the possibility of staff transfers, or "mobility" had been "in the ether" for some time but he accepts that the Complainant was shocked to find that it applied to him. The witness also accepted that it was never put to the Complainant in advance that he was being transferred and regrets the fact that the Complainant did not receive greater notice of the transfer. The witness confirmed that he had no knowledge of the protected disclosures at the time of the transfer of the Complainant and had first known about them after reading an article in a Sunday newspaper.

Summary of the Evidence of Pat Flanagan, ex Head of the Investigations División:

The witness stated that he was Head of the Division from 2014 to his retirement in August 2018 when he handed the reins over to Tim Drea. He said that he had a conversation with Mr Michael Sheehan, the Head of the Veterinary Services on 3 August 2017 who had travelled down from Dublin from Dublin to his base in Nenagh. He was requested by Mr Sheehan to have a conversation with the Complainant to suggest that he move to the Wildlife department because otherwise he might find that he would be subject to whatever transfer the department came up with.

He said he did not know about the disclosures when he met Mr Sheehan or when he met the Complainant later the same day to offer him the Wildlife position. The witness said that there was no intention on his behalf to suggest that the management were out to get the Complainant. He was satisfied that people were aware of mobility within the Department as a concept.

In cross-examination the witness acknowledged that it was an unusual meeting with Mr Sheehan, and also that he never had any other informal meeting with him. He accepted that there was no formal record of the meeting.

Summary of the Evidence of Morgan Lyons – Superintendent inspector Waterford/ Kilkenny Region:

The witness was head of the office where the Complainant was re-assigned to in June 2020. He recalls meeting the Complainant and telling him that he felt that he (the Complainant) was treated badly. He stated that he did not believe it was a demotion, stating that there are 200 veterinary professionals in the department who would disagree with any contention that the job was stepdown.

In cross examination he described the Complainant’s demeanour as that of an unhappy person.    

Summary of the Respondent’s Legal Argument:

The Respondent submits as follows:

1.       The Complainant has not established facts which show that penalisation has occurred;  

2.       Without prejudice to the foregoing, if such penalisation is found to be established, which the Respondent denies, same was not as a result of having made a protected disclosure in 2017 but was as a result of a requirement for mobility within the division in which the Complainant was working arising out of a review of that division.

The Respondent submits the following as its position:

 On 2 August 2017 the Complainant made a disclosure to the Minister of Agriculture, Food, and the Marine. This was accepted by the Department to be a protected disclosure and was investigated under the Department’s Protected Disclosure Policy and addressed with the utmost confidentiality. The outcome of the investigation into the Complainant’s protected disclosure was notified to him in or around November 2020.

The Special Investigations Unit was renamed Investigations Division following a review carried out in 2014. In 2018 a further review of the Department’s Investigations and Prosecution procedures and structures was carried out to identify how the Department’s Investigation Division could best support the strategic objectives of the Department and the wider agri-food sector. Following the review, a series of recommendations were made, 20 in total, and thereafter the Steering Group began to implement the relevant recommendations.

As appears from the 2018 report, the nature of the work carried out by the Investigations Division is highly specialised and there are strong public interest reasons underpinning the recommendations that flowed from the review. The implementation of the recommendations of the review were overseen by the Investigation Division’s Steering Group requiring cross-departmental co-ordination, and with the Human Resources Division with respect to staffing issues in particular. The recommendations arising from the report were rolled out in the period following the report’s publication. The minutes of the meeting of the Steering Group on 27 May 2020, which was the last before the reassignment of the Complainant, show that there were only two outstanding recommendations, one of which was to give effect to recommendation 20 which stated, “In line with the broader civil service and departmental HR policies, mobility will apply to the staff of the division, albeit on a more lengthy rotation than standard, given the specialised nature of the work. An annual workforce plan for the division will be formulated by the head of division in collaboration with the personnel officer to manage the staffing arrangements”. At that meeting, the decision was made to progress mobility within the division as per recommendation 20 and to implement it using the objective criteria of length of service in the Division.

 Following the meeting, engagement continued between Human Resources and Investigations Division with a view to identifying the longest serving staff members within the division and ensuring that there was mobility in line with recommendation 20. As appears from email correspondence from April to June 2020, significant efforts were made to identify the longest serving members and appropriate positions for them to move to.

 Staff within Investigations Division would have been very aware of the ongoing reviews in 2014 and 2018 and of the recommendations arising therefrom. The 2018 review was a standing item on agendas for staff meetings and staff were well aware of the issues regarding mobility in the division. The Complainant’s line manager made efforts to speak directly with him in order to notify him of the proposed reassignment, the possibility of which would have been already known to him. In response to his manager’s request on 12 June 2020 that he contact him for a telephone discussion, the Complainant replied by email advising that he did not have mobile coverage.

 On 15 June 2020, the Complainant was notified of his reassignment to Area Management Team (“AMT”) South Division with effect from 29 June 2020. The letter notifying him of his reassignment referred to the Department’s mobility policy, insofar as this reassignment was “in accordance” with same, but also referred to the recommendations arising from the review, which was the singular driver of the reassignments given effect in June 2020. The letter advised the Complainant to report to his new manager in advance to make arrangements for his commencement. The letter also notified the Complainant that his headquarters would remain in the Kilkenny local office and there were no changes therefore to his locations of work.

 On 25 June 2020, following a query raised on his behalf by the President of the VOA, it was clearly confirmed that the reassignment of the Complainant and his colleague was being implemented solely on foot of the findings of the review into the Investigations Unit and the fact that their transfer was in line with broader mobility principles was purely incidental. This was again confirmed to the Complainant by email of 26 June 2020 following a further query from him.

Allegation of an offer to move in 2017

The Complainant appears to allege some kind of penalisation in or around 2017 following the making of his protected disclosure by a threat to move him to a different role. Whilst the Respondent argues principally that this is far outside the time limits allowed for consideration by the WRC, without prejudice, the background to this is as follows. A senior Veterinary Inspector involved in badger culling / badger vaccination had signalled an intention to retire or reduce his working hours in the following months or year. This was a highly specialised and critically important role for the Department and so it was thought sensible to explore the possibility of having someone on the veterinary side work with him over a period to try to capture some of his corporate knowledge. It was therefore suggested that inquiries would be made with the veterinary inspectors to see if this is something that might be of interest to them. No offer was ever made to the Complainant but simply a discussion occurred enquiring as to whether this was something he would be interested in as a result of the query raised with his Head of Division. A similar discussion occurred with many Heads of Division as to whether staff they had might be interested or suitable for a Wildlife role. The making of an offer to the Complainant was not within the power of the relevant officers and this would have had to have been progressed through the regular procedures. It arose only on the basis of a request for Heads of Division to identify staff who might be a good fit for the role.

Penalisation for having made a Protected Disclosure

 The Complainant has made a complaint pursuant to Section 12 of the Act.

 A “protected disclosure” is defined according to section 5(1) of the 2014 Act as:

“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.”  

 Section 12(1) of the Act 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.”

 Section 12(3) provides:

“Schedule 2 shall have effect in relation to an alleged contravention of subsection (1).”

 Schedule 2 provides for the making of a complaint to a rights commissioner for a contravention of Section12(1).

 Sub-paragraph 6 of Schedule 2 provides:

“Subject to subparagraphs (7) and (8), a rights commissioner shall not entertain a complaint under this paragraph if it is presented after the end of the period of 6 months beginning on the date of the contravention to which the complaint relates.”

The parameters of Section 12

The Complainant has made his complaint under the provisions of Section 12 of the Act which allows for a consideration of whether there has been penalisation for making a protected disclosure. In circumstances where it is accepted that the Complainant made a protected disclosure within the meaning of the Act, the Respondent submits, it is neither appropriate nor necessary to consider the substance of the disclosure and determine whether it constituted a protected disclosure. In A Senior Official –v- A Local Authority ADJ-0000172, the Adjudicator found:

“The Respondent does not accept the substance of the disclosures. It goes without saying that my role is not to look into, or make findings upon, the matters raised by the complainant in the disclosures. My role is to determine whether the complainant has been subjected to penalisation for having made the disclosures.”  

 The Respondent submits, it is also clear that the period for consideration is six months prior to the making of the complaint and this period ends on the making of the complaint. It is therefore submitted that the relevant period is 6 months prior to 11 December 2020 (i.e., back to 11 June 2020) and that only any alleged detriment suffered during that period can be considered.

Detriment

The Complainant appears to allege that his reassignment from the Investigations Division was, in and of itself, a detriment. Section 12(1) requires penalisation, being an act or omission that affects a worker to the worker’s detriment. The ordinary and natural meaning of the word detriment is harm or damage. Thus, the legislature requires that the detriment must be of a nature as to harm or damage the person making the disclosure.

The Respondent submits that from the Complainant’s ‘conditions of service’ and specifically Part II (Para 4) that headquarters ‘will be such as may be determined from time to time by the Head of the Department’. This principle was underlined in the Report of a Review of Investigations and Prosecutions which stated, at paragraph 19 that “all posts within the Investigations Division should be assigned at the discretion of the Personnel Officer with due regard to business needs and circumstances”.All officers within the Department are deployed at the discretion of senior management and there are mobility policies in place that benefit both the business and the development of individual staff members. The Respondent accepts that a person who is transferred from one position to another to the detriment of their terms and conditions has resort to the mechanism available for dispute resolution. However, the Respondent argues that this transfer did not entail such detriment. The Respondent contends that ‘terms and conditions’ refer to matters concerning job title, remuneration, leave entitlements, hours of work, superannuation arrangements and other conditions attached to employment in the Department.  As a result of his reassignment, the Complainant has not had any change to his terms and conditions of employment. He remains assigned to the same geographic location and his pay, hours of work, leave entitlements and other conditions are unchanged.

The Respondent argues that Complainant appears to allege in his written submissions that the work of his new division was somehow of less importance than the work he was involved in within the Investigations Division. Whilst the Respondent denies that this, in and of itself could constitute a detriment, the Respondent submits in any event that the work of AMT South involves a broad range of regulatory work, including (but not limited to) work in the fields of Veterinary Public Health, Animal Health and Welfare, Food Safety and Veterinary Medicines, which is of the highest importance to the Department. Veterinary management had identified a need for additional staff resourcing in the Area Management Team South and good and valuable work existed there for the Complainant to perform.

 The Complainant’s then-manager made ongoing efforts to integrate him into the work of the team whilst recognising that he would have ongoing obligations with regard to the caseload in which he was lead investigator at the time of his reassignment. Whilst management in both his new and previous roles fully acknowledged and accommodated his ongoing commitments in this regard, this work was not his full-time job and would naturally decline in volume over time as cases were concluded. The Complainant was fully expected to contribute to the work of AMT South and numerous efforts were made to engage him in work there, but he was continuously unavailable for work in his new role.

The Respondent submits that the Complainant has not been affected to his detriment by his reassignment and he has failed to identify any basis on which it could be found otherwise.

The “but for” test

The Respondent submits that even if the Complainant can be said to have identified a “detriment” within the meaning of the 2014 Act, the Respondent asserts that there is no causal connection between the making of protected disclosures in August 2017 and his reassignment in June 2020. The Labour Court has consistently confirmed the test which a Complainant 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 on the basis of the findings in Aidan & Henrietta McGrath Partnership v Anna Monaghan (PDD162).  In that case the Court found:

“…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.”

On the basis of the foregoing, the Respondent submits that if it is accepted that the reassignment of the Complainant constituted a detriment, which the Respondent denies, the reasons for the Complainant’s reassignment were clearly laid out to him, at the time, and since and are not in any way linked to the disclosures made by him in 2017. The Respondent submits that it is clear that the reassignment of the Complainant arose from the recommendations of the 2018 Review of the Department’s Investigations and Prosecutions and in particular the recommendation for mobility in the Investigations Division. The Respondent contends that the minutes of the Steering Group and the surrounding emails (exhibited) clearly show the basis for the selection of those employees who were to be reassigned and that this was done on the basis of length of service alone.

 The Respondent submits that whilst the Complainant contends that there were others within the Department with longer service, the email correspondence shows that within the Investigations Division, the Complainant and his two colleagues who were also reassigned, were the longest serving. As the recommendation for mobility applied to the Investigations Division only, this was the basis for the Complainant’s reassignment. The Respondent contends It is clear from the emails that no-one directly involved in the decision to reassign the Complainant was involved with or even aware that the Complainant had made a protected disclosure.

 Furthermore, the Respondent’s position is that the protected disclosure was treated with the utmost confidentiality such that the persons dealing with the reassignment had no knowledge thereof at that time. The Department’s Policy notes at page 3 “The Department will take all reasonable steps to treat disclosures made in accordance with this Policy in a confidential and sensitive manner. The Department will not disclose the worker’s identity without their consent; unless it is required by law or necessary for the effective investigation of the relevant wrongdoing...”  Section 12 is entitled “Confidentiality/Protection of Identity” and provides, inter alia:

Where it is necessary to disclose the identity of the discloser, the disclosure recipient should contact the discloser and, where possible, gain the consent of the discloser, prior to any action being taken that could identify them.  

Where it is decided that it is necessary to disclose information that may or will disclose the identity of the discloser, the discloser should be informed of this decision. The discloser may request a review of this decision and a review should be carried out, where practicable before any such disclosure of information is made.”

The Respondent argues that the Complainant has not suggested that the Department did not follow its own policy in relation to disclosing the identity of the Complainant. Furthermore, he has not put forward any evidence to suggest that those involved in the decision-making regarding reassignment had any knowledge of the making of his protected disclosures. It has not therefore been established that the protected disclosures formed any part of the motive or reasons which influenced the decision to transfer.

Closing statement of Sarah-Jane Hillery BL, Counsel for the Respondent:

Counsel made the point that the Protected disclosure was made on 2 August 2017 that it was only officially received by the Respondent on the following day, and it would show remarkable efficiency for the Respondent that it was so "organised and vindictive" that it set up a review in 2017 solely to "get at Mr Reardon" by reassigning him three years later "beggars belief". Ms Hillery also pointed to evidence that the review into the investigations unit that would eventually recommend Mr Reardon's transfer began in June 2017, two months before Mr Reardon's protected disclosure.

She added that evidence from department officials showed there was no intention to “get” the Complainant for his investigations and that the prospect of transfers was something that had been “in the ether” for a number of years for the investigation’s unit. She also stated that the Respondent witnesses, Mr Drea and Mr. Galligan, gave clear evidence of not having prior knowledge of the protected disclosures.

She submitted that there was no detriment to the Complainant in that he operated from the same office with the same salary.

The Respondent accepted that the Complainant made protected disclosures for the purposes of the Act on 2 August 2017. I must now determine whether the Complainant was penalised for making such disclosures.

The Applicable Law:

As there is no claim of dismissal before me the applicable law dealing with alleged penalisation can be found at section 12 where it 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, for having made a protected disclosure.

(2) Subsection (1) does not apply to the dismissal of an employee to whom section 6(2)(ba) of the Unfair Dismissals Act 1977 applies.

(3) Schedule 2 shall have effect in relation to an alleged contravention of subsection (1).

“penalisation” means any direct or indirect act or omission which occurs in a work-related context, is prompted by the making of a report and causes or may cause unjustified detriment to a worker, and, in particular, includes—

(a) suspension, lay-off or dismissal,

(b) demotion, loss of opportunity for promotion or withholding of a 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) coercion, intimidation, harassment or ostracism,

(f) discrimination, disadvantage or unfair treatment,

(g) injury, damage or loss,

(h) threat of reprisal,

(i) withholding of training,

(j) a negative performance assessment or employment reference,

(k) failure to convert a temporary employment contract into a permanent one, where the worker had a legitimate expectation that he or she would be offered permanent employment,

(l) failure to renew or early termination of a temporary employment contract,

(m) harm, including to the worker's reputation, particularly in social media, or financial loss, including loss of business and loss of income,

(n) blacklisting on the basis of a sector or industry-wide informal or formal agreement, which may entail that the person will not, in the future, find employment in the sector or industry,

(o) early termination or cancellation of a contract for goods or services,

(p) cancellation of a licence or permit, and

(q) psychiatric or medical referrals;

In order to succeed in a claim for penalisation under the Act, it must be shown that “but for” the protected disclosure, a complainant would not have been penalised. The Respondent opened in Aidan & Henrietta McGrath Partnership v Anna Monaghan (PDD162).  In that case the Labour Court found:

“…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.”

The Court in that case stated that provisions regarding penalisation are broadly similar to those provided in the Safety Health and Welfare Act, 2005 and referred to the “but for” test in O’Neill v Toni and Guy Blackrock Limited [2010] E.L.R. 21. The Court in the latter referred to the burden of proof as follows:

“….it seems to the Court that a form of shifting burden of proof, similar to that in employment equality law should be applied in the instant case. Thus, the claimant must establish, on the balance of probabilities, that he made complaints concerning health and safety. It is then necessary for him to show that, having regard to the circumstances of the case, it is apt to infer from subsequent events that his complaints were an operative consideration leading to his dismissal. If those two limbs of the test are satisfied it is for the respondent to satisfy the Court, on credible evidence and to the normal civil standard, that the complaints relied upon did not influence the claimant's dismissal.”

In this instant case the Complainant must establish that he suffered a detriment when he was moved to a new position in June 2020 that having regard to the circumstances, it is apt to infer from subsequent events that his act of making protected disclosures on 2 August 2017 was an operative consideration leading to the detriment imposed. If both limbs are satisfied, the burden shifts to the Respondent to show, on credible evidence and to the normal civil standard, that the protected act did not influence the detriment imposed.

Detriment:

The Respondent argued that the re-assignment of the Complainant from the Investigations Division could not be termed a detriment. He remains assigned to the same geographic location and his pay, hours of work, leave entitlements and other conditions are unchanged. The Respondent further denied that the work was of less importance than the work he was involved in within the Investigations Division and that his new work involves a broad range of regulatory work, including (but not limited to) work in the fields of Veterinary Public Health, Animal Health and Welfare, Food Safety and Veterinary Medicines, which is of the highest importance to the Department.

The Complainant gave convincing evidence of feeling isolated and humiliated and having suffered a loss of status after his removal from his frontline, albeit challenging, work which he enjoyed. He stated that that the instruction to move “came out of the blue” and he was given two weeks only to re-assign to a new position.  He also spoke about the ill- effects the re-assignment had on his health.  Mr Galligan, the HR manager accepted that an involuntary transfer could be seen as a penalisation but was adamant it was not the case here. Further evidence was given by the Complainant’s new Area Manager Mr. Lyons when he told the Complainant that he felt that he (the Complainant) was badly treated. Mr Drea, for the Respondent, who stated that he was the person of authority who decided to move the Complainant, accepted that he had little no regard for human resources practice at the time and felt that, in hindsight, the Complainant should have been consulted and given greater notice of the move. Having regard for the foregoing evidence, I am satisfied that the Complainant’s re-assignment, and in the manner, it was carried out, was unfair and the transfer of duties led to diminution of status for him. I find he has shown he has suffered a detriment and he therefore discharged the evidential burden imposed on him. In discharging that burden, it can be inferred from the evidence that the making of the disclosures may have been an operative consideration leading to the detriment imposed.

Penalisation:

In accordance with the “but for” test, the burden now shifts to the Respondent to show, on credible evidence, that the act of the Complainant making protected disclosures did not influence the detriment imposed.

The Complainant points to the meeting he had with Mr Pat Flanagan on 3 August 2017, the day after his disclosures. Mr Flanagan gave evidence of the content of that meeting, which did not conflict with that of the Complainant, namely that if he didn’t take up another role then he might fall victim to the mobility policy. Mr Flanagan stated that he was just the messenger for Michael Sheehan, who earlier that day travelled from Dublin, in an unprecedented fashion, to meet him in Mr Flanagan’s office with the sole intention that Mr Flanagan would pass on the message to the Complainant. It is regrettable that Michael Sheehan did not appear at the hearing to give evidence of his account of his business on that day.  Based on the evidence before me, the only logical conclusion to take from these events was that this meeting was very much connected with the protected disclosures the Complainant had made the preceding day.

Time moved on. Evidence was given by Mr Galligan, HR manager, that there were discussions ongoing circa 2018 under the auspices of a cross departmental group (the Steering Group) The agenda for this group was the overhaul and reform of the Investigations Division, which included a mobility policy for veterinary officers, amongst numerous other recommendations.  A report was issued in 2018. Mr Galligan in his evidence stated that the Steering Group mobility policy   was based mainly on long service due to the “attrition” effect the confrontational work had on people. He also said that the policy supported the longer serving members to "develop their careers" and open up opportunities for people moving into the unit. Whilst Mr Galligan was the person responsible for communicating the transfer of staff, Mr Drea, who had taken over from Mr Flanagan, was the person who declared in his evidence that it was he who made the decision, based on the Steering Group’s mobility policy, to make the decision to move the Complainant. He said that his priority on appointment was to implement what he saw as implementing the recommendations of the Steering Group.  This witness said he found it difficult to work with the Complainant. It is clear that the Respondent is entitled to re-organise and re-assign the cohort of Veterinary Officers within the organisation, of which the Complainant is one. It was not custom and practice to move Veterinary Officers in line with general mobility policy of the Civil Service, but the Steering Group Report certainly set out to change that legacy issue.

 A significant span of time passed between the occurrence of 17 August 2017 and the subsequent re-assignment of the Complainant in June 2020.  This considerable gap exacerbated the difficulty in showing a causal connection between the two events. Counsel for the Respondent said it “beggars belief” that the Department would wait for three years to penalise the Complainant.   Counsel for the Complainant referred to the fact that seldom in these cases is there a “smoking gun “and therefore I should rely on the strong inference from the evidence that the end result here was always going to be an involuntary transfer. Evidence was given on behalf of the Complainant that the implementation of such a plan was exceptional and that, in effect, it divested the Division of a certain amount of its effectiveness.

 The Complainant came across as an honest and sincere witness at the hearing and that there is no doubt that he is a committed and diligent worker, who upheld the highest standards when calling people to account in the very responsible position that he held in the Investigations Division. I am satisfied also that he was treated shabbily by the Respondent in the manner in which he was re-assigned.  The evidence of his unprecedented meeting with his manager in 2017, a day after his disclosures, shows that someone, somewhere, at that time in the Respondent department, was unhappy with his disclosures, an unhappiness that manifested itself in a relayed veiled threat from on high to the effect that he should move, or else be moved. Had he brought a case within the cognisable period for the Act at the time, there might well have been a different outcome.

 The Complainant case rests in effect on the argument that there is a strong inference to be made from the evidence submitted to suggest that there were persons lurking in the tall grass, concealed and patient for three years, under the guise of the Steering Group, who set up a cross departmental review body which made numerous recommendations, including one mobility clause, for the purpose of ultimate retaliation for the protected disclosures of the Complainant.  Based on the evidence presented, I am unable to reasonably infer the occurrence of such a scenario. I note that two other colleagues were also moved on the basis  of seniority.  Both Mr Galligan and Mr Drea, the main frontline players in this case, gave sworn, unrebutted evidence, that neither had knowledge of the Complainant’s protected disclosure at the material time in June 2020. This evidence was  telling. Moreover, I cannot ignore the considerable distance between the events of 2017 and 2020, which further informs my conclusions. Having considered the foregoing, I am satisfied that there was a legitimate re-assignment by the Respondent in June 2020 as per the Steering Group’s recommendations, albeit patently questionable in its efficacy and detrimental to the Complainant. I am satisfied, therefore, that the Complainant’s protected disclosures did not influence this decision.  

in conclusion, the evidence   provided by the Respondent satisfied the threshold required to establish, on the balance of probabilities, that the reassignment of the Complainant in 2020 was not penalisation as defined under the Act for his disclosures in 2017. I find that the Complaint of penalisation was not well founded.

For the reasons outlined above, I find that the complaint of penalisation under the Protected Disclosures Act 2014 was not well founded.

Protected Disclosures Act 2014, Penalisation.