Complainant

Respondent

Parties

Douglas  Bel-Maguire

Health Service Executive

Representatives

Ms Griffin, Fieldfisher Ireland LLP

Ms Sweeney BL instructed by Comyn Kelleher Tobin LLP

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

ADJ-00040105    CA-00052045-001

02/08/2022

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

ADJ-00040105    CA-00054986-001

10/02/2023

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

ADJ-00040105    CA-00054986-002

10/02/2023

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

ADJ-00035530    CA-00046696-002

14/10/2021

The complainant has been employed by the respondent for the last 25 years. In 2009, he was re-assigned to take on the additional work of a colleague when she retired and was not replaced. The complainant alleges that there has been a breach of Section 5 of the Terms of Employment (Information) Act 1994, in that his employer did not notify him in writing of the change to his terms of employment. He raised this issue among other issues with his employer in July, August and September 2021 and then submitted a complaint to the WRC which was received on 14th October 2021.

The complainant submitted two further complaints to the WRC which were received on 10th February 2023. These were penalisation complaints as per the Protected Disclosures Act 2014 and the Terms of Employment (Information) Act, 1994. The complaints allege that the complainant was penalised after raising the grievance and subsequently submitting a complaint to the WRC in October 2021.

The complainant’s representative set out the basis of the complaints as outlined in the comprehensive submissions made.

Summary of Complainant’s Evidence

The complainant gave evidence of his role of Assistant Project Manager from 1999 up to 2009. In 2009 he was re-assigned to a Senior Executive Officer role to take on the administrative work of a retired colleague along with his existing Assistant Project Manager role. At the time, he presumed it was a temporary arrangement although over time he became more involved in administration and realised he would not be returning to his previous role.

He was trained on a new payments system and assisted with the training of other staff. From 2013 onwards he raised the issue of the grading of his post particularly as he had taken on additional tasks and colleagues were promoted around this time. Having exhausted the internal grievance procedures and given management adequate time to address his grievance, he felt he had no option but to submit his complaint to the WRC.

Since raising the grievance with management and submitting the complaint to the WRC he outlined several incidents which have occurred. He gave evidence that his role has been reviewed without any consultation with him. In March 2022 he was not involved in the recruitment of additional staff and the roles which they would carry out. In April 2022, a colleague was assigned work in the Minor Capital area which was work that he was involved in. He gave evidence that over this period he was not involved or included in staff training and development which is a role he had previously been involved in.

He gave evidence that he was not included in the recruitment of a Business Manager role and that the grading of this post was relevant to his situation. He said that when temporary staff pay increases were to be applied that this was his work which was carried out by a colleague.

He outlined that he felt unsupported and isolated when an urgent issue arose in relation to a substantial payment which was due for payment for capital works. He felt undermined by the involvement of a Business Manager from the southern region in this issue.

He submitted that even though he had requested additional staff over the years, it was only since he made the complaint that new staff were recruited. He was not consulted on the assignment of tasks when new staff came onboard and that this was impacting on his role.

He had carried out work in preparation for reviews by the Controller and Auditor General and he was no longer carrying out this work.

Further evidence and documents were referred to and relied upon by the complainant. As the respondent needed time to consider this evidence, the hearing was adjourned for a short period.

On the resumption of the hearing, the complainant referred to a recent occasion where he was requested to change the lay-out of invoices in his office. Further evidence was given of his training duties and his supervision of staff which he felt was being undermined by a staff organisation chart which limited his supervisory duties.

The complainant was cross-examined on the circumstances of his re-assignment in 2009 and whether this was as per his contract of employment considering the roles were similar and on the same campus.

On the penalisation issue, he was questioned on the wider service being reviewed as opposed to just his role being under review. He was questioned on his role and the extent of duties removed from him. He was questioned on his training role and the extent of his work with the Controller and Auditor General. He was questioned on his understanding of the new Business Manager role and on the additional documents that the complainant was relying on to demonstrate the erosion of his role.

The respondent’s representative submitted that some of the alleged penalisation issues relied upon by the complainant were outside of the 6-month timeframe from the submission of the WRC complaint form.

The respondent contests that there has been a breach of the Terms of Employment (Information) Act 1994, and that the complainant has suffered penalisation under the 1994 Act or the Protected Disclosures Act 2014.

Summary of Mr Ruane’s Evidence

Mr Ruane outlined his role and responsibilities as Estates Manager for the Southeast. He gave evidence of a review he instigated after he was appointed permanently to the manager role. This review arose from a concern that the payment of invoices could be handled more efficiently. He was intent on ensuring that all staff knew how the payments system operated. He gave evidence of recent administrative support and that this was required to assist in the payments area.

He gave evidence of how his previous role in minor capital was re-assigned to another staff member. He outlined that the C & G work was minimal and as it was now online, he delegated this task to another staff member. He gave background on the recruitment of a Business Manager role and that this process was now stalled arising from a recent recruitment embargo.

He gave evidence on how he requested assistance from the Business Manager in Cork to improve the payments system in the Southeast and that this was a general review as opposed to a specific review of the complainant’s work.

He was not fully aware of the extent of training carried out by the complainant. He considered this work as not substantial and only arose when training needs were being reviewed.

He gave evidence of how he requested the complainant to arrange the invoices and lay-out of his office and this was to ensure that there would be an improved invoice system. He explained that the payments system was ultimately his responsibility as manager, and he wanted to reduce the number of late payments and digitalise the system.

Mr Ruane was cross-examined on his awareness of the complainant’s grievance. He was questioned on the retention of the complainant’s site allowance and whether the administrative staff member reported to him. He was questioned on the payments system and the instruction to the complainant to re-arrange his office. He was questioned on his understanding of the complainant’s role in Minor Capital and whether it was appropriate to delegate some of these tasks to others.

Summary of Ms Geary’s Evidence

Ms Geary described her role as Business Manager and her involvement as support to the Estates Manager. She gave evidence of her assistance in reviewing the payments system in the Southeast.

She gave evidence on the payment of the outstanding invoice which became an urgent issue and how she became involved. She also gave evidence on the split budget letter.

She was questioned on her views in relation to the complainant’s grievance and grading review.

ADJ 00035530- CA-00046696-002- Complaint on Terms of Employment (Information) Act 1994

Section 5 of the Terms of Employment (Information) Act, 1994, states:

5. (1) Subject to subsection (2), whenever a change is made or occurs in any of the particulars of the statement furnished by an employer under section 3, 4 or 6, the employer shall notify the employee in writing of the nature and date of the change as soon as may be thereafter, but no later than –

(a)    1 month after the changes take effect

In evidence the complainant has said that he was re-assigned to the role of SEO along with his existing role of Assistant Project Manager when his colleague retired in 2009. The extent of the changes that occurred at this time are unclear and there is a conflict in evidence as to whether this was a fundamental change or whether the respondent was entitled to change the role as per the contract of employment. The respondent’s position is that there has been no material change to the terms of the contract issued on his initial appointment.

The respondent is also relying on the contract which states ‘This assignment may be changed at the discretion of the Southeastern Health Board having regard to the service needs in the Board’s area.’

The correspondence of 21st & 22nd October 2009 on the retention of the site allowance demonstrates the complainant retained his Assistant Project Manager role along with the SEO role. Although the complainant expected this to be temporary, it remained in place and further work was assigned to him and currently he is still without a written document outlining his title and role. He raised the fact that a ‘Variation Order’ was on his file from 2009 and he only recently discovered this through a recent FOI request.

As the ‘title, grade, nature or category of work………’ is a requirement under Section 3 (1A) of the Act, it follows that any change to the above terms should be notified in writing as per section 5 (1).

I find there was a breach of the Act when the changes in 2009 were not notified in writing to the complainant. The reason why I consider this a breach is because this was a fundamental change to the complainant’s title and role within the HSE. Although the respondent has referred to a clause in the initial contract, it has not been demonstrated that the Assistant Project Manager post was interchangeable with the Senior Executive Officer post and no examples of previous interchangeability of other staff was provided.

The complainant gave evidence that when signing documents, he was unsure as to which title to use. This lack of clarity of job title and role caused considerable difficulty and was never clarified despite the grievances raised over a protracted period. Although the respondent is relying on the re-assignment clause in the contract, this does not sufficiently address the reason why the new role was not outlined in writing within one month as per the Act. The change was so fundamental that it was recorded as a ‘Variation Order’ for internal records and resulted in correspondence as to whether the site allowance was applicable in the changed role.

As this is a subsisting and ongoing breach, the case of  An Animal Carer v. A Charity, ADJ 0009820, is authority that the matter still comes within my jurisdiction.

In accordance with Section 7 of the Act, I declare that the complaint is well founded, and order the employer pay to the employee 4 weeks remuneration. For clarity this payment is not a payment of arrears of wages.

I also require the employer to set out in writing to the complainant the changes made so that the terms of employment are up to date.

ADJ-00040105 - CA-00054986-001- Complaint under Protected Disclosure Act 2014

Section 3 of the Act defines penalisation-"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 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;

Section 5 (3) of the Act sets relevant wrongdoings for the purposes of the Act-

(3) The following matters are relevant wrongdoings for the purposes of this Act—

(a) that an offence has been, is being or is likely to be committed,

(b) that a person has failed, is failing or is likely to fail to comply with any legal obligation, other than one arising under the worker’s contract of employment or other contract whereby the worker undertakes to do or perform personally any work or services,

(c) that a miscarriage of justice has occurred, is occurring or is likely to occur,

(d) that the health or safety of any individual has been, is being or is likely to be endangered,

(e) that the environment has been, is being or is likely to be damaged,

(f) that an unlawful or otherwise improper use of funds or resources of a public body, or of other public money, has occurred, is occurring or is likely to occur,

(g) that an act or omission by or on behalf of a public body is oppressive, discriminatory or grossly negligent or constitutes gross mismanagement,

(h) that a breach has occurred, is occurring or is likely to occur, or

(i) that information tending to show any matter falling within any of the preceding paragraphs has been, is being or is likely to be concealed or destroyed or an attempt has been, is being or is likely to be made to conceal or destroy such information.

Section 12 (1) states that ‘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.

Deliberations

The first issue to be decided as per Aidan & Henrietta Mc Grath Partnership v. Anna Monaghan [PDD 162) is whether a protected disclosure has been made.

The complainant submits that a protected disclosure was made under section 5 (3)(b) and 5 (3)(g) in circumstances where it relates to a breach of the respondent’s statutory obligations under the Terms of Employment (Information) Act 1994 and the respondent who is a public body acting in a manner that is grossly negligent and amounts to gross mismanagement.

The complainant relies on the complaints made under the grievance procedure on 12th July, 9th August, and 7th September 2021 and the subsequent complaint to the Workplace Relations Commission on 14th October 2021.

The respondent asserts that the complainant did not make any disclosure to the respondent in accordance with section 6 of the Act. The respondent also asserts that the complaint to the WRC cannot amount, in law, to a protected disclosure.

In Baranya v. Rosderra Irish Meats Group Limited [2021] IESC 77, one of the issues decided by the Supreme Court was that the making of a complaint that related to a health and safety issue could be a protected disclosure based on the wider implications other than to the complainant.

The Act was subsequently amended to differentiate between a personal grievance and protected disclosure.

Section 5 (A) of the Act states.

5A) A matter concerning interpersonal grievances exclusively affecting a reporting person, namely, grievances about interpersonal conflicts between the reporting person and another worker, or a matter concerning a complaint by a reporting person to, or about, his or her employer which concerns the worker exclusively, shall not be a relevant wrongdoing for the purposes of this Act and may be dealt with through any agreed procedures applicable to such grievances or complaint to which the reporting person has access or such other procedures, provided in accordance with any rule of law or enactment (other than this Act), to which the reporting person has access. 

I have reviewed the grievance complaint and the WRC complaint form which confirm that the worker was exclusively pursuing issues on his own behalf. This section of the Act allows these issues to be dealt with in accordance with agreed procedures and/or any rule of law or enactment.

The complainant representative submits that this amendment does not concern the complainant as the transitional provisions allow for prior protected disclosure complaints to proceed. Therefore, the Baranya judgment is authority that the grievance and WRC complaint should be considered in a broader context. As there was a breach of statutory obligations by a public body as claimed under section 5 (3)(b) and 5 (3) (g), I find that a protected disclosure has been made in accordance with the Act.

I must now proceed to investigate whether there was penalisation because of the making of the protected disclosure.

At the hearing, substantial evidence was given as to how the complainant’s role was eroded, and duties transferred to other staff members. The complainant has also alleged that he has been singled out for review and excluded from decision making.

The complainant’s representative asserts that all the instances should be examined as there was a common thread and continuum to demonstrate an erosion of work, ostracism, and effective demotion. As the WRC complaint was lodged in October 2021, I have considered all the incidents outlined up until the time the actual protected disclosure complaint was made on 10th February 2023.

When the complainant was describing the detriment he suffered, one of the main themes was that his duties were being eroded. He gave examples of this in relation to minor capital works, training, C & G preparatory work, recruitment, and application of salary increases.

The complainant described another aspect of the ‘detriment’ which arose from the review of tasks without his involvement along with the proposed recruitment of a Business Manager.

The complainant’s representative submitted that once the ‘detriments’ were outlined, the onus and burden of proof was on the respondent to prove the contrary as per section 12 (7C) of the Act.

The respondent’s two witnesses gave evidence in relation to each of the instances raised by the complainant. I have considered all this evidence along with the definition and understanding of the term ‘detriment’. The respondent representative has cited An Garda Siochana v. Delahunt [HSD 1311] which in turn refers to several UK cases. The test as to whether detriment exists is an objective test and whether a reasonable worker would or might take the view that he had thereby been disadvantaged in the circumstances in which he had thereafter to work.

I am not convinced from all the evidence that the instances described amount to a detriment suffered by the complainant. My reasoning is that the instances of erosion of work include the removal of some menial tasks that you would expect when additional staffing resources become available or when work systems are under review. In some instances, the removal of a task was not a regular task carried out by the complainant such as in the training and recruitment area.

The evidence given by the respondent’s witnesses were persuasive since any of the main changes implemented came within the remit of the management function. This includes the assignment of tasks, the review of systems and office layout, and normal changes to improve service delivery.

For completeness, even though I do not find that there was sufficient evidence to show a detriment, the complainant obviously felt his treatment related to his earlier complaint. In effect the test under Toni & Guy Blackrock v. Paul O’Neill [2010] 21 E.L.R 1 of ‘but for’ the protected act he would not have suffered a detriment.

Detailed evidence was given by the three witnesses of the work environment and changes that were taking place at the relevant time. I am not convinced that incidents described by the complainant are unusual in a workplace that was undergoing change under a new manager. Although the complainant links these developments to the fact that he had made a protected disclosure, there is insufficient evidence that the actions of management were in direct response to the complaints made. As the complainant grievances persisted over several years, I am not convinced that the actions of management over the period from October 2021 to February 2023 resulted from the protected disclosure as they fall within the normal functions of management.

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

ADJ-00040105-CA-00054986 Complaint of Penalisation under Terms of Employment (Information) Act 1994

Protection against penalisation

6C.— (1) An employer shall not penalise or threaten penalisation of an employee for—

(a) invoking any right conferred on him or her by this Act,

(b) having in good faith opposed by lawful means an act that is unlawful under this Act,

(c) giving evidence in any proceedings under this Act, or

(d) giving notice of his or her intention to do any of the things referred to in the preceding paragraphs.

2) Subsection (1) does not apply to the making of a complaint that is a protected disclosure within the meaning of the Protected Disclosures Act 2014.

In the alternative to penalisation under the 2014 Act, the complainant submits that he was penalised due to the respondent acting to his detriment because of him making a statutory complaint under the Terms of Employment (Information) Act 1994.

Deliberations

The complainant has invoked a right under the Act and therefore, I can now proceed to investigate whether he has been penalised as a result.

 At the hearing, substantial evidence was given as to how the complainant’s role was eroded, and duties transferred to other staff members. The complainant has also alleged that he has been singled out for review and excluded from decision making.

The complainant’s representative asserts that all the instances should be examined as there was a common thread and continuum to demonstrate an erosion of work, ostracism, and effective demotion. As the WRC complaint was lodged in October 2021, I have considered all the incidents outlined up until the time the actual protected disclosure complaint was made on 10th February 2023.

When the complainant was describing the detriment he suffered, one of the main themes was that his duties were being eroded. He gave examples of this in relation to minor capital works, training, C & G preparatory work, recruitment, and application of salary increases.

The complainant described another aspect of the detriment arising from the review of tasks without his involvement along with the proposed recruitment of a Business Manager.

The respondent’s two witnesses gave evidence in relation to each of the instances raised by the complainant. I have considered all this evidence along with the definition and understanding of the term ‘detriment’. The respondent representative has cited An Garda Siochana v. Delahunt [HSD 1311] which in turn refers to several UK cases. The test as to whether detriment exists is an objective test and whether a reasonable worker would or might take the view that he had thereby been disadvantaged in the circumstances in which he had thereafter to work.

I am not convinced from all the evidence that the instances described amount to a detriment suffered by the complainant. My reasoning is that the instances to describe the erosion of work include the removal of some menial tasks that you would expect when additional staffing resources become available or when work systems are under review. In some instances, the removal of a task was not a regular task carried out by the complainant such as in the training and recruitment area.

The evidence given by the respondent’s witnesses were persuasive since any of the main changes implemented came within the remit of the management function. This includes the assignment of tasks, the review of systems, office layout, and normal changes to improve service delivery.

For completeness, even though I do not find that there was sufficient evidence to show a detriment, the complainant obviously felt his treatment related to his earlier complaint. In effect the test under Toni & Guy Blackrock v. Paul O’Neill [2010] 21 E.L.R 1 of ‘but for’ the protected act he would not have suffered a detriment.

Detailed evidence was given by the three witnesses of the work environment and changes that were taking place at the relevant time. I am not convinced that incidences described by the complainant are unusual in a workplace that was undergoing change under a new manager. Although the complainant links these developments to the fact that he had made a protected disclosure, there is insufficient evidence that the actions of management were in direct response to the earlier complaint made. As the complainant grievances persisted over several years, I am not convinced that the actions of management over the period from October 2021 to February 2023 were because of the protected disclosure as they were well within the normal functions of management.

For the above reasons, I find the complaint of penalisation under the Terms of Employment (Information) Act 1994 is not well founded. 

ADJ 00035530- CA-00046696-002- Complaint on Terms of Employment (Information) Act 1994

In accordance with Section 7 of the Act, I declare that the complaint is well founded, and order the employer pay to the employee 4 weeks remuneration. For clarity this payment is not a payment of arrears of wages.

I also require the employer to set out in writing to the complainant the changes made so that the terms of employment are up to date.

ADJ-00040105 - CA-00054986-001- Complaint under Protected Disclosure Act 2014- I find the complaint of penalisation under the Protected Disclosures Act 2014 not well founded.

ADJ-00040105 CA-00054986-002- Penalisation- Terms of Employment (Information) Act 1994- I find that the complaint of penalisation under the Terms of Employment (Information) Act 1994 not well founded.

Terms of Employment, Protected Disclosure