ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00029646

Parties:

Complaint(s):

Date of Adjudication Hearing:  07/02/2023

Workplace Relations Commission Adjudication Officer:  Michael McEntee

Procedure:

In accordance with Section 41 of the Workplace Relations Act, Schedule 2 of the Protected Disclosures Act, 2014; Section 28 of the Safety, Health & Welfare at Work Act, 2005 and Part 14 Section 103(55M) of the Health Act, 2007 following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.

In deference to the Supreme Court ruling, Zalewski v Ireland and the WRC [2021] IESC 24 on the 6th April 2021 the Parties were informed in advance that the Hearing would normally be in Public, Testimony under Oath or Affirmation would be required and full cross examination of all witnesses would be provided for.

The required Affirmation / Oath was administered to all witnesses present. The legal perils of committing Perjury were explained to all parties.

The confidentiality of the decision was considered but on balance it was the Adjudicator view that no major arguments were established to justify anonymisation in the publication of the decision.

Background

The issues in contention concerned a Military Officer (A Lieutenant Colonel) in the Irish Defence Forces who alleged that he had been Penalised for making complaints & disclosures under the Protected Disclosures Act, 2014, the Safety Health and Welfare at Work Act, 2005 and the Health Acts 2004 to 2007.

The officer entered the Military (Irish Defence Forces) as a Cadet in October 1993, and his service continues.

The rate of pay is the published Lieutenant Colonel pay scale for 40-hour week.

Decisions on major Preliminary Issues.

In an agreed departure from normal WRC procedures, it was agreed that an initial Adjudication Decision on major opening Legal issues was necessary as a preliminary to the main case.

It was considered that an Adjudication decision on the opening issues would, in all probability, after consideration by the Parties, need to be open to appeal at the Labour Court.

Accordingly, a formal Adjudication decision, to facilitate an Appeal if necessary, would issue.

The Complaint under the Health Act,2007 was withdrawn during the Hearing.

1:        Opening Legal Issues

There were two very significant opening legal issues in this case. These can be stated as follows

1. Legal Employment Status of a Commissioned Army Officer in relation to Schedule 2 of the Protected Disclosures Act, 2014; Section 28 of the Safety, Health & Welfare at Work Act, 2005 and Part 14 Section 103(55M) of the Health Act, 2007
2. The application of the Estoppel Legal Principal to the case bearing in mind that significant proceedings had already taken place in relation to the same or very closely allied facts under internal military procedures.

It was agreed that the Adjudication Officer would deal with these matters as a preliminary issue in view of the consequences to the overall handling of the case.

Accordingly, it is necessary to set these out in some detail.

(For convenience the Protected Disclosures Act, 2014 will be referred to as the PD Act,2014)

1:1         Legal status of a Commissioned Military Officer relative to the cited Legislation.

1:1:1     Summary of Complainant Arguments – in relation to the Protected Disclosures Act,2014.

The Complainant, Mr AP Brady BL, argued that the Complainant was an employee for the purposes of the PD, 2014 Act.  He cited in support the definitions of Employee in the Unfair Dismissals Act,1977 and the Employment Equality Act,1998.

He worked for a salary for the Minister for Defence and was in all things an employee as commonly understood.

The arguments of the Respondent regarding Section 12 and Section 13 of the PD Act ,2014 and the differing possible interpretations of a Worker and an Employee referred to in the Act were largely semantical. It was clear that the terms were virtually interchangeable.

Accordingly, he could avail of Section 12 of the Act to make a Protected Disclosure.

1:1:2          Summary Respondent Arguments; Employment Status of Military Officers.

The Respondent Lead Counsel, Mr Kerr SC, argued that a Military Officer, such as the Complainant, did not have a Contract of Employment as commonly understood.  He was not an employee rather he was an Office Holder, a distinct legal status.

The Supreme Court case of McGrath v Minister for Defence [2010] 1 IR 560 was cited at length as was The State (Gleeson) v Minister for Defence [1976] I.R 280 in support of the Respondent arguments. In summary the Complainant did not have a Contract of Employment rather he held an Office and therefore was not an employee as required in making a Disclosure by Section 12 of the PD Act,2014.

Accordingly, the WRC has no jurisdiction to hear the case under section 12 of the PD Act,2014.

Section 13 of the PD Act refers to actions in Tort, which is open to the Complainant, but which are outside of the WRC’s jurisdiction.

In summary the complaints under the Protected Disclosures Act,2014 and the Health Acts 2007 are precluded from the WRC as the Complainant is not an employee.

By separate legislative provisions, the Complainant has proper grounds for action under the Safety, Health and Welfare at Work Act 2005. This element of the Complaint is proper to continue.

1:2         Estoppel Arguments in relation to the case.

1:2:1        Complainant’s Arguments.

It was not disputed that the main facts of the case had been already considered by the Ombudsman for the Defence Forces and by a Section 114 “Redress of Wrongs” procedure of the Defence Act,1954. Mr AP Brady BL argued, in summary, that these internal Military procedures were in essence incomplete and did not in any event have the legal “teeth” to properly address the issue in this case.

It was a misunderstanding of the Estoppel doctrine to argue, as the Respondent was doing, that the doctrine could be applied here to prevent the Complaint pursuing his case to the WRC. Considerable reliance was placed on Culkin v Sligo County Council [2017]2 IR 326 in support of the Complainant case. The argument being that the Complainant could not have sought Compensation under the Redress of Wrongs Procedure or via the Ombudsman. This was an avenue only open under the WRC and as such the complaints could properly proceed.

1:2:2         Respondent Arguments

The Complainant had by the date of the Hearing been through the Redress of Wrongs Procedure and the Military Ombudsman.

The Respondent argued that the Complainant relied heavily on the Culkin v Sligo Co. Council [2017] 2IR 326 case and by extension the Henderson v Henderson principle. The basic argument being that he, as alleged, could not have sought Compensation from the Military Ombudsman or via the Redress of Wrongs procedures he is entitled to seek relief from the WRC.

The Respondent argued that the Ombudsman has a broad remit and can investigate alleged Penalisations. The Ombudsman is not precluded (Section 7(3) of the Ombudsman 9 Defence Forces Act 2004 ) from recommending payment of compensation.

Common sense has also to be brough to bear. The Ombudsman, a former High Court Judge, carried out a most comprehensive exercise and the lengthy report was submitted in the bundle of Documents from the Respondent.

The Culkin precedent and also cited by the Complainant, the National Museum of Ireland v Minister for Social Protection [2017] IEHC 198 cannot be relied upon to base a completely new departure by the WRC.

The case is clearly Issue Estoppel.

1:3         Adjudicator Conclusions.

1:3:1       Status of Complainant.

The Respondent relied heavily on the Supreme Court case of McGrath v Minister for Defence [2010] 1 IR 560 and by extension The State (Gleeson) v Minister for Defence [1976] I.R 280.

Unambiguously and as quoted from Par 44 of the judgement

[44] In my view, it follows that the trial judge was in error in awarding damages for breach of contract to the plaintiff against the first defendant. (The Minister). As both Henchy and Kenny J said, a man of the permanent defence forces is not a servant of the first defendant. There is no contractual relationship between them”        Underlining by Adjudicator

In this clear statement it has to follow that the Complainant, in this case, cannot proceed under Section 12 of the PD act,2014 as an employment relationship , a status as an employee,  is a basic requirement.

Other protection of employees from penalisation for having made protected disclosure

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

Section 13 – a Tort Action – is a possibility

Tort action for suffering detriment because of making protected disclosure

13. (1) If a person causes detriment to another person because the other person or a third person made a protected disclosure, the person to whom the detriment is caused has a right of action in tort against the person by whom the detriment is caused.

(2) A person may not both—

(a) pursue a right of action under subsection (1) against a person in respect of a matter, and

(b) in respect of the same matter make or present against the same person—

(i) a claim for redress under the Unfair Dismissals Acts 1977 to 2007,

(ii) a complaint under Schedule 2, or

(iii) a complaint under section 114 of the Defence Act 1954 or section 6 of the Ombudsman (Defence Forces) Act 2004.

However, this is a matter for the Civil Courts and not the WRC. However, it is noted in passing that Section 13, Sub Section 2(iii) quoted above would appear to have some relevance.

1:3:2          Adjudicator final conclusion / Employment Status.

Based on the Supreme Court precedents cited the Complainant cannot pursue a Section 12 complaint.

It is worth noting that a similar conclusion came with Adj -00018461 and LRC appeal PDD2017 of October 2021- Leahy v PRTB. The facts of that case were not completely parallel, but the Labour Court gave very careful consideration to the Worker v Employee distinction in the PD Act,2014. The Labour Court determined that as the Complainant in that case was not an Employee, the Court could not proceed.

Accordingly, the WRC does not have proper jurisdiction and the compliant in this case ADJ 29646 cannot proceed with the Protected Disclosures complaint CA-00038970-001 as formulated.

1:3:3         Issue Estoppel.

Considerable discussion and Legal considerations of the Henderson v Henderson principle and the case Culkin v Sligo Co. Council [2017] 2IR 326 took place at the Hearing.

The Adjudicator studied the Documents submitted and in particular the Military Ombudsman outcome. The Military Ombudsman is a former most respected High Court judge, and his outcome is lengthy and considered.

The Ombudsman is not precluded from making a payment of compensation.

In addition, the Righting of Wrongs (Section 114 of the Defence Act,1954) procedure was extensively used by the Parties.

1:3:4         Adjudicator conclusion Issue Estoppel

In this context a “reasonable observer” has to ask what additional benefit could accrue from a complete re-examination by the WRC on matters already extensively examined by reputable bodies acting in keeping with Statute.

The “reasonable” answer has to be that little of benefit would accrue.

Accordingly, the Adjudicator view has to be that the Complaint – CA-00038970-001 (Protected Disclosure) and CA-00038970-002 (Safety, Health and Welfare) are Issue Estoppel and cannot proceed.

2:        Adjudication Decision

Decision:

Section 41 of the Workplace Relations Act 2015; Section 28 of the Safety, Health & Welfare at Work Act, 2005 and Part 14 Section 103(55M) of the Health Act, 2007 require that I make a decision in relation to the complaints in accordance with the relevant redress provisions of the cited Acts.

2:1      CA-00038970-001: Complaint seeking adjudication by the Workplace Relations Commission under Schedule 2 of the Protected Disclosures Act, 2014

The compliant is not withing proper Workplace Relations Commission jurisdiction. In addition, it is the view of the Adjudicator that Issue Estoppel applies.

The complaint is not properly founded and fails.

2:2:    CA-00038970-002: Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005.

On the basis of Issue Estoppel arising from the Redress of Wrongs and Military Ombudsman outcomes the complaint is not properly founded and fails.

2:3          CA-00038970-003: Complaint seeking adjudication by the Workplace Relations Commission under Part 14 Section 103(55M) of the Health Act, 2007

This complaint was withdrawn.

Dated:   05/07/2023

Workplace Relations Commission Adjudication Officer:  Michael McEntee

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