FULL RECOMMENDATION
SECTION 12 (2), PROTECTED DISCLOSURES ACT, 2014 PARTIES: DAVID STONE & CAROL STONE T/A ASHTON DOG POUND AND WARDEN SERVICE (REPRESENTED BY MANAGEMENT SUPPORT SERVICES (IRELAND) LTD) - AND - CONOR WILLIAMSON (REPRESENTED BY BEIBHIN MURPHY BL, INSTRUCTED BY O'HANRAHAN LALLY D'ALTON SOLICITORS) DIVISION:
SUBJECT: 1.Appeal Of Adjudication Officer Decision No ADJ-00033234 CA-00043900-001 DETERMINATION: Background A case management conference was held on 16th February 2023, and it was agreed by the parties that the complaint before the Court was under the Protected Disclosures Act 2014 and not Schedule 2 of the Criminal Justice Act 2011. The Complainant states that he made a protected disclosure by email to his employer on 26thJuly 2020 in respect of cruelty to animals, and that he was then subjected to unwarranted disciplinary investigations and sanctions. The Respondent stated that they accept that the email of the 26thof July 2020 was a protected disclosure, but the disciplinary investigations and sanctions arose from the behaviour of the Complainant, and complaints they received, and were in no way linked to the protected disclosure. The Complainant lodged his complaint with the WRC on 5th May 2021. The cognisable period for the purpose of the Act is 6thDecember 2020 to 5thMay 2021. The issue for the Court to consider, is whether the Complainant suffered a detriment during the cognisable period, and whether there was a casual link between the detriment and his protected disclosure. Summary of the Complainant’s submission and evidence. Ms Murphy BL on behalf of the Complainant submitted that he commenced work with the Respondent in July 2017 as a Dog Warden and continued in employment until the service was returned to Dublin City Council in July 2021. The Complainant was absent on certified sick leave from August 2018 to June 2020. Prior to going on sick leave he had no issues in his employment. By email of the 26thof July 2020 the Complainant made a protected disclosure to the Respondent, in and around the same time, he also reported the incidents to an Garda Siochana. In October 2020, he was informed by the Respondent, that he was being investigated for refusing to do on-call duty in early October 2020, and in respect of comments he had made on face book contrary to the Respondent’s social media policy. On December 15th,he received a final written warning. The Complainant in his evidence will state that he did not refuse to do the on-call duty. The Complainant will state that in February 2021 he was offered a severance agreement which contained a non-disclosure clause, but he did not accept same. On the 19thof March 2021, the Complainant was suspended arising from complaints made by other members of staff. Following an investigation of those complaints, he was advised on 27thJune 2021 that his final written warning was being extended by 12 months. A few weeks later the pound transferred back to Dublin City Council, and he along with other staff were made redundant. The Complainant in his evidence to the Court stated that he had no disciplinary issues in the workplace prior to making his protected disclosure on the 26thof July 2020. In respect of the on-call issue, his name was not on the roster for October or November 2020, and therefore he did not believe he was due to do on call duties. His line manager Raymond Connolly called him on a Monday morning to say that he was on call that week. He informed Mr Connolly that he was not on the roster, and he put in what he believed was a reasonable request, that his name be put on the roster and that he be given reasonable advance notice of when he was to be on call. On 12thOctober 2021, he received a letter from the Respondent, advising that he was being investigated for two incidents. 1) Refusing to carry out on call duties on the 5thof October 2020, and 2) for posting comments on Facebook. The letter instructed him to remove the post from Facebook which he did. The letter went on to invite him to attend a meeting on the 15thof October 2020, and advised that he could be accompanied at the meeting. He was absent on sick leave from the 30thofOctober 2020 to November 7th, 2020. On the 11thof November 2020, the Respondent advised him that they were closing the complaint in respect of the posts on Facebook. The Complainant stated that it was his position all along that he had never received the social media policy which had been circulated to staff in March 2020, when he was out sick. The Complainant went on to say that he had made a formal complaint against his line manager during this period and the complaint had been upheld. The disciplinary process in respect of the on-call issue carried on. On the 15thof December 2020 he received a letter upholding the allegation that he had refused to carry out on call duties in October and November 2020, and issuing a final written warning which was to remain active on his file for 12-months. The Complainant stated that on the 8thof February 2021 his Union representative brought a draft exit agreement to his attention, which he understood had been drafted by Mr Hegarty. He discussed the agreement with his Trade Union Official, but he was not prepared to sign it, as it contained a non-disclosure clause. On the 19thof March 2021 he received a letter from the Respondent advising that they had received complaints from other staff about him. A copy of the complaints were attached to the letter. The letter stated that he was being placed on paid suspension pending an investigation into the allegations, and that the suspension would only be for as long as it took to complete the investigation. The Complainant stated that he believed that he was being punished for making the protected disclosure. The investigation was caried out by way of zoom meetings. He had asked Mr Hegarty to check the CCTV footage as it was his belief it would support his version of events in respect of the allegations against him. The Complainant stated that one of the signatories to the letter of complaint withdrew his complaint, and he did not believe that the other complaints stood up to scrutiny. The Complainant stated that he had supplied the names of two witnesses to the investigator, but no reference is made to their interviews in the final report. The Complainant stated he was invited to a meeting but could not attend as his grandmother died so the meeting had to be changed to a later day. However, he did not get paid for the day he attended his grandmother ‘s funeral. He stated that the detriment he suffered for making a protected disclosure, was that he received two disciplinary sanctions arising from a flawed process. He believes that after he declined to sign the exit agreement a concerted effort was made by the Respondent, to get rid of him. All of this had a detrimental effect on his mental health and family life. It was put to the Complainant under cross examination by Mr Kennedy BL that when he came back from sick leave in July 2020, he was told that Wayne Portland had replaced him while he was out sick and that he had been given Mr Portland’s phone. On that basis, he would have known that he was slotting into Mr Portland’s slot on the on-call roster. The Complainant stated that he did get Mr Portland’s phone but not straight away on his return. He did not know he was replacing Mr Portland on the roster. The Complainant stated that his name was not Wayne Portland which was the name on the roster. He accepted that Mr Portland’s employment ended two/three months after he returned to work. It was put to him that the letter he received on the 7thof October 2020 clearly indicated that he would have to do on-call and on 10thNovember 2020 he got a further letter about on-call. The Complainant stated that he thought his request to have his name on the rota was not an unreasonable request and he was prepared to do on call once this happened and he was given reasonable notice. The Complainant accepted that in the period October / November when this issue was being investigated that he never claimed that he was being penalised in respect of his protected disclosure. It was his evidence to the Court that he did not believe the issue relating to the rosters, was linked to his protected disclosure. The Complainant appealed the decision to give him a final written warning, but his appeal was unsuccessful, and he did not take that issue any further. In respect of the second issue the Complainant accepted that when the Respondent received a letter of complaint from six members of staff, that the Respondent had a duty to investigate it. However, he believed the complaints from the six staff members were an orchestrated campaign to get rid of him. Mr Kennedy BL took the Complainant through the investigation report noting that six out of the eight allegations were not upheld. The Complainant’s evidence was that each of the allegations regardless of whether it was upheld or not was a detriment to him. The Complainant stated that he does not accept that the suspension was reasonable as he did not have much contact with the other staff. In redirect by Ms Murphy BL, the Complainant’s evidence was that he was not told that the original complaint about on call was being expanded to deal with a second issue, and in his email of appeal of that issue, he had listed his protected disclosure as being linked to the reason why he was investigated. Ms Murphy BL submitted that the penalisation and detriment the Complainant suffered, arose from unsafe procedures that lead to unsafe decisions that put him at peril. He was placed on a prolonged suspension from mid-March 2021 until end of June 2021. The Complainant was suspended for 14 weeks and five days, the procedures were not carried out in line with fair procedures and the causal link between the protected disclosure and the penalisation was Mr Stone. The protected disclosure was made to Mr Stone. He was also the person that issued the letters instigating the two investigations into complaints about the Complainant. Summary of Respondent’s submission and evidence. The Respondent accepts that the Complainant’s email of the 26thof July 2020 constituted a protected disclosure, but does not accept that the Complainant suffered any penalisation or detriment arising from making that disclosure. Following his return from sick leave, the Complainant on two occasions, refused to do on-call, which is a requirement of the job and one the Complainant would have been fully aware of. With the exception of casual workers, all dog wardens are required to do on call. The refusal of the Complainant to carry out a legitimate instruction in respect of doing on-call is a matter that required investigation and ultimately attracted a sanction and would have arisen even if he had not made a protected disclosure. In respect of the second issue, the Responded received a letter setting out a number of complaints against the Complainant signed by six members of staff. The Respondent was obliged to investigate these complaints. The Respondent’s business had at the time 10 employees, and the fact that six had signed the letter meant the reasonable approach for the Respondent to adopt was to place the Complainant on paid suspension pending investigation of the complaints. This process would have occurred even if the Complainant had not made a protected disclosure. The Complainants evidence that he was not required to have any dealing with the other staff and that he only needed to attend the pound in the morning and the evenings is not altogether correct as if he seized a dog, he would have to bring it back to the pound and would have to engage with other staff. The Complainant was paid his basic wage while on suspension and taking into account the fact that this occurred during the Covid Pandemic the period of paid suspension was not unreasonable or exceptionally long. Mr Stone in his evidence on behalf of the Respondent confirmed that he was the owner, and that it was brought to his attention that the Complainant was not doing on call duties. He instructed Management Support Services (MSS) his HR advisors to carry out an investigation into the issue. In respect of the second issue, he received complaints from a number of staff about the Complainant. He sought advice from MSS and took the decision to suspend the Complainant and have the complaints investigated. He was aware that the Complainant had made a protected disclosure but that had no bearing on the decision to investigate the complaints from the other staff members and or the decision to suspend the Complainant pending the investigation. Under cross examination Mr Stone accepted that the first allegation against the Complainant was in respect of not doing on call in October but that it was later expanded to include not doing on call in November. He confirmed that he could not recall when he told the Complainant that the complaint was being expanded, but he believes he did tell him. Mr Ray Connolly had told him about the on-call issue, all dog wardens other than two summer wardens, were required to on call duties. The Summer wardens were on different contracts. In respect of the process used to investigate the incidents, he consulted with MSS. He is aware of the Respondent’s procedures and would have read same but was not aware of the time limits contained in same. He accepted that the investigation into complaints from staff took 14 weeks but that was during Covid and there were a number of interviews to be carried out. The next witness for the Respondent was Mr Hegarty from MSS. Mr Hegarty confirmed that he was asked to investigate the on-call issue. At that time the Complainant was on a verbal warning. He accepted that the second incident in November was included in his investigation. He found that even if there was some ambiguity about doing the on call in October 2020, the Complainant was well aware in November 2020 that he was covering Mr Portland’s slot. It was Mr Hegarty’s evidence that the Complainant did not mention his protected disclosure during the investigation into his failure to do on call in October and November 2020. Arising from that process the Complainant was given a final written warning in December 2020 which he appealed but was unsuccessful. Mr Hegarty stated that he was asked to investigate the complaints from six members of staff which were received by the Respondent in March 2021. The Complainant alleged that the complaints were organised to target him, and that the Respondent and the staff were colluding against him. It was Mr Hegarty’s evidence that he found no evidence of collusion, and in fact, only upheld two of the eight complaints lodged. He found that the complaints from the staff members were different and only two amounted to what could be considered bullying. He confirmed that the disciplinary action arising from that report was carried out by Mr Stone and that he just sent his report to Mr Stone but did not discuss the report with him. Under cross examination by Ms Murphy BL, Mr Hegarty accepted that he did not look at CCTV despite being requested by the Complainant to do so. It was his evidence that the CCTV policy did not provide for it to be used in those type of circumstances. He accepted that he had not provided the Complainant with a copy off the CCTV policy nor had a copy of same being provided to the Court. Mr Hegarty accepted that he had discussed the suspension with the Mr Stone but that the decision to suspend had been made by Mr Stone. Mr Hegarty stated that he had drawn up the draft severance agreement with the knowledge of Mr Stone and that he had understood that the Complainant had requested same. Mr Kennedy BL submitted that the casual link between the Complainant’s protected disclosures and the disciplinary procedures is missing. The Respondent fully accepts that a protected disclosure was made. However, the fact of a protected disclosure being made does not prevent an Employer from dealing with regular workplace complaints. The Complainant in his evidence to the Court, accepted that the issue in respect of on call was not linked to his protected disclosure. In respect of the second issue the complaints from other staff members, the Complainant accepted that the Respondent was entitled to investigate same. The Respondent accepts that the procedures followed were not perfect, but no casual link has been established between the protected disclosure and the sanction imposed by the Respondent arising from that investigation. Mr Kennedy BL submitted that without a casual link between the protected disclosure and the alleged detriment the complaint must fail. The applicable law
Discussion It is not disputed in this case that a protected disclosure in line with section 5 of the Act was made. It therefore falls to the Court to consider whether or not the Complainant was penalised for having made such a protected disclosure. It is necessary for a Complainant to show that the detriment of which he complains was imposed “for” having committed a protected Act. This suggests that 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. In this case the detriment complained of as articulated by his Ms Murphy BL was that he was “subjected to unsafe procedures that lead to unsafe decisions that put him at peril.” The procedures in question are the investigations, disciplinary procedures, and sanctions arising from same in respect of the on-call issues and the complaints from six staff members. The outcome of these procedures being a final written warning for twelve months which was ultimately extended by a further 12 months arising from the second disciplinary process. Having carefully studied the submitted documents and listened to the oral arguments and evidence on the day, it appears to the Court that applying the “but for” test to the issues identified by the Complainant in his complaint that these issues would have arisen even if he had not made a protected disclosure. The Complainant in his sworn evidence to the Court accepted that the disciplinary sanction arising from the on-call issue was not related to his protected disclosure. Therefore, in respect of this element of his complaint the Complainant has failed to establish a casual link between his protected disclosure, and the investigation and or sanction of a final written warning that arose from that process. In respect of the second process, the Complainant accepted that on receipt of complaints of alleged bullying behaviour from six members of staff the Respondent had an obligation to investigate same. The Complainant raised the issue of his suspension pending investigation and the duration of the suspension. The Court determines based on the submissions and the evidence before it that placing a staff member on suspension in the circumstances that pertained at the time was within the bounds of reasonable behaviour by an employer. The Complainant was unable to establish any link between the decision to suspend and his protective disclosure other than that he had made the disclosure to Mr Stone and that Mr Stone had taken the decision to suspend him. The Court does not accept that, that fact in and of itself, is sufficient to establish a causal link between the protected disclosure and the suspension in circumstances where there were live complaints warranting investigation against the Complainant. It was accepted that one person withdrew their complaint. It was also accepted that the investigator did not look at CCTV footage as he believed to do so would be contrary to the Respondent’s policy on use of CCTV footage. The Complainant asserted to the investigator that there was a concerted effort between the Respondent and the staff who made the complaints to target him, and his representative submitted that there were issues with the processes followed by the Respondent. Mr Hegarty MSS who carried out the investigation into the complaints, in his evidence to the Court stated that he found no evidence during his investigation to support the Complainant’s contention. It was his evidence that staff had various complaints but out of eight complaints he only upheld two as constituting bullying behaviour. The Complainant failed to establish any link between this process and his protected disclosure, in fact he accepted that the Respondent was obliged to investigate the complaints he received. The final issue for the Court to consider relates to the decision arising from Mr Hegarty’s report following his investigation, taken by Mr Stone to impose a sanction of extending his final written warning for a further 12-month period. The Complainant was unable to establish any link between the decision to extend his final written warning and his protective disclosure other than that he had made the disclosure to Mr Stone and that Mr Stone had taken the decision to extend his final written warning. The Court does not accept that, that fact in and of itself, is sufficient to establish a causal link between the protected disclosure and the extension of the final written warning in circumstances where there was an investigation report upholding two allegations of bullying behaviour by the Complainant. The Court determines as set out above that while there may have been some short comings in the manner in which the processes were implemented by the Respondent, these were wholly unrelated to the Complainant’s protected disclosure and therefore no detriment in line with section 12 of the Act arises. For the reasons set out above the Court is satisfied that no penalisation occurred. The Respondent’s appeal succeeds. The decision of the Adjudication officer is set aside. The Court so determines.
NOTE Enquiries concerning this Determination should be addressed to Aidan Ralph, Court Secretary. |
