Complainant

Respondent

Anonymised Parties

A Complainant

A Department and state body

Representatives

Aoife Burke Chief State Solicitors Office

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Schedule 5 of the Central Bank (Supervision and Enforcement) Act, 2013

CA-00031189-001

19/09/2019

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

CA-00031189-002

19/09/2019

Complaint seeking adjudication by the Workplace Relations Commission under Part 14 Section 103(55M) of the Health Act, 2007

CA-00031189-003

19/09/2019

Complaint seeking adjudication by the Workplace Relations Commission under Schedule 2 of the Criminal Justice Act 2011

CA-00031189-004

19/09/2019

The Complainant was employed from 1st November 1991.

CA-00031189-001

The Complainant complains of penalisation under Schedule 5 of the Central Bank (Supervision and Enforcement Act) 2013. On 8th July 2019, the Complainant’s solicitor was served with notice that she is to be sacked by her employer. The report stated she had until 29th July 2019 to reply and state why they should not sack her. Two reports were forwarded to her employer explaining about the Complainant’s protected disclosures going back to 2011, and complaints about colleagues in relation to breach of human rights, health and safety and employment right breaches, and that she is appealing her criminal case to the Supreme Court.

The Complainant reported corruption to Disclosures Tribunal, to the Central Bank, to OLAF and GSOC. She made a statement to the chairman of the Disclosures Tribunal and will be included in Disclosures Tribunal. She has been victimised under S74 of the Employment Equality Act 1998, the Health Act 2004 and Protected Disclosures Act 2014 for making complaints against her employer. She has not received due process, natural or constitutional justice and fair procedures. She was framed due to exposing corruption in the service.

CA-00031189-002

The Complainant complains of penalisation under Schedule 2 of the Protected Disclosures Act 2014.

CA-00031189-003

The Complainant complains of penalisation under Part 14 Section 103(55M) of the Health Act 2007.

CA-00031189-004

The Complainant complains that she has been penalised under Schedule 2 of the Criminal Justice Act 2011.

The complaints are misconceived and should be dismissed pursuant to S42 (1) as the complaints are frivolous or vexatious.

CA-00031189-001

The Complainant alleges the Respondent threatened to dismiss her because she made protected disclosures. The Respondent says the evidence shows the decision to notify the Complainant of intention to dismiss was due to her conviction of a serious criminal offence for which she served 20 months in prison.

The Respondent makes a preliminary application and says the Workplace Relations Commission does not have jurisdiction to hear the complaint under schedule 2 of the Protected Disclosures Act 2014, that S12 (1) of the Act does not apply to alleged penalisation of threatened dismissal or dismissal of an employee to whom S 6(2) (ba) of the Unfair Dismissals Act 1977 applies.

S 6 (2) (ba) of the Unfair Dismissals Act 1977 provides:

“(2) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal if it results wholly or mainly from one or more of the following….

(ba) the employee having made a protected disclosure.”

Without prejudice to the foregoing, the Respondent says the evidence shows the Complainant was notified of the intention to dismiss which was due solely to her conviction of a serious criminal offence. There was no reference to her alleged protected disclosure, and the Complainant has not adduced any evidence to suggest the decision-maker had or could have had any knowledge of alleged protected disclosures made at the time of notification of intention to dismiss.

On 2nd July 2019, the Court of Appeal dismissed the Complainants appeal on conviction but allowed the appeal on sentence. The Complainant was released from prison on 2nd July 2019 after serving 20 months. The Complainant claims submissions were lodged on 19th July 2019. The Respondent denies receiving any submissions but says this is irrelevant as the recommendation to dismiss was made on 4th July 2019.The Complainant’s appeal to the Supreme Court was dismissed on 24th July 2020.

The Respondent submits the onus of proof is on the Complainant to prove the detriment alleged was due to the making of a protected disclosure, and this occurred “because of or in retaliation for” the protected act, that the protected act is the operative cause for the detriment. The Respondent relies on the decision in McGrath Partnership v Monaghan PDD162[2017] 28 ELR 8. The Complainant has not adduced any evidence to show the decisionmakers were even aware of her claim to have made protected disclosures or this was the operative cause of the decision to notify her of intention to dismiss.

CA-00031189-002

S38 (1) of the Central Bank Act 2013 provides:

(1)    Where a person makes, in good faith, whether in writing or otherwise, a disclosure to an appropriate person and the person making the disclosure has reasonable grounds for believing that the disclosure will show one or more of the following:

(a)    that an offence under any provision of financial services legislation may have been or may be being committed:

(b)    that a prescribed contravention may have been or may be being committed:

(c)     that any other provision of financial services legislation may have been or may be being contravened;

(d)    that evidence of any matter which comes within paragraphs (a) (b) or (c) has been, is being or is likely to be deliberately concealed or destroyed,

the disclosure shall be a protected disclosure for the purposes of this Part.

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

The Complainant has advanced no evidence to show she has made a protected disclosure within the meaning of section 38. Alternatively, the complaint must fail on the basis the Complainant has not discharged the onus of proof to show the making of any alleged protected disclosure was the operative cause of the decision to notify the Complainant of intention to dismiss.

CA-00031189-003

The Complainant does not come within the terms of this Act as the she was an employee of A State Body who are not employers under the Health Act 2007.

CA-00031189-004

The Complainant alleges penalisation under Schedule 2 of the Criminal Justice Act 2011. The Complainant has advanced no evidence that she has made a disclosure within S20 of the 2011 Act as the Respondent has no record. S20 (1A) of the 2011 Act provides that subsection (1) does not apply to a disclosure that is a protected disclosure within the meaning of the 2014 Act. The Complainant has not discharged the onus of proof to show making of alleged protected disclosures was the operative cause of the decision of 5 July 2019.

I have heard and considered the submissions and evidence given by the parties and their witnesses. In light of the Complainant’s medical situation, and reports, it is appropriate that the parties be given anonymity.

CA-00031189-001

The Complainant’s complaint of penalisation under schedule 5 of the Central Bank (Supervision and Enforcement) Act 2013 was received by the Workplace Relations Commission on 19th September 2019. S38 (1) of the Central Bank (Supervision and Enforcement) Act 2013 provides where a person makes in good faith a disclosure and has reasonable grounds for believing the disclosure will show offences under financial services legislation, a prescribed contravention may have been or is being committed, or a provision of financial services legislation may have been or may be being contravened or evidence of any of these matters has been, is being or is likely to be deliberately concealed or destroyed is a protected disclosure. The Complainant has not adduced any evidence of making a protected disclosure within the meaning of S38 of the Central Bank (Supervision and Enforcement) Act 2013 within the relevant period in order for a complaint of penalisation to arise. Accordingly, I find this complaint is not well founded.

CA-00031189-002

The Complainant has made a complaint of penalisation under Schedule 2 of the Protected Disclosures Act 2014 that on 8th July 2019 her solicitor was served with notice that she is to be sacked. She says two reports were forwarded to the person deciding on dismissal explaining that she made a number of protected disclosures going back to 2011, complaints about members of the Respondent in relation to breaches of human rights, health and safety breaches, employment rights breaches, and was appealing her conviction to the Supreme Court.  The Respondent has no record of receiving any reports from the Complainant regarding her protected disclosures, but says notification on the complaint form was received after the threat to dismiss was notified. The decision-maker gave evidence that he had no knowledge that the Complainant made protected disclosures until 27th July 2019 after notification of threatened dismissal was sent.  He had no other dealings with the Complainant. The reason for threat of dismissal was the conviction of a serious offence, sentence of the Complainant, gravity of the offence and lack of confidence of the public.

The test for penalisation of a worker due to a protected disclosure complaint was set out by the Labour Court in Aidan & Henrietta McGrath Partnership v Monaghan [2017] ELR 8 and that the Court must:

(i)                  Establish that a protected disclosure had been made; and

(ii)                If so, then it must examine whether a penalisation within the meaning of the Act has occurred.

The Court stated the act or omission that is being complained of must be because of, or in retaliation for, the worker having made a protected disclosure. The making of the protected disclosure must be an operative cause of the penalisation. A consideration of the motive or reasons which influenced the decision maker to subject the worker to the act or omission complained of must be undertaken.

In 2013 the Complainant was arrested and suspended with pay. A disciplinary investigation was commenced which was paused until the conclusion of the criminal proceedings following request by the Complainant. The Complainant was convicted of harassment contrary to the Non-Fatal Offences against the Person Act 1997 on 1 August 2017 and sentenced for 3 years in prison which was subsequently reduced to 20 months on appeal on 2nd July 2019. On 5th July 2019 notice of threatened dismissal was sent to the Complainant’s solicitor.

Having considered the evidence, I find the complaint is not well founded. The appeal of the Complainant’s conviction concluded on 2nd July 2019 and notice of threatened dismissal was sent to her solicitor on 5th July 2019 which is close in time to the conclusion of the criminal process. The Complainant has not provided evidence of any link between the decision by the Respondent of threat of dismissal in 2019, and her protected disclosures which were made at various times from 2011 onwards.

CA-00031189-003

The Complainant does not come within the terms of this Act as she is not an employee under the Health Act 2007. The complaint is not well founded.

CA-00031189-004

The Complainant alleges penalisation under Schedule 2 of the Criminal Justice Act 2011. The Complainant has not discharged the onus of proof to show making of alleged protected disclosures was the operative cause of the decision of 5 July 2019.

The complaint is not well founded.

CA-00031189-001

This complaint is not well founded.

CA-00031189-002

The complaint is not well founded.

CA-00031189-003

I find the complaint is not well founded.

CA-00031189-004

I find the complaint is not well founded.

Protected disclosure, operative cause