Complainant

Respondent

Parties

Ciarán  Quinlan

Health Service Executive

Representatives

Self- Represented

JJ Tevlin ; Employee Relations Department of Health Service Executive

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00047151-001

11/11/2021

The issue in contention concerns the alleged Penalisation of the Complainant by the Respondent employer, for having made a Protected Disclosure under the Protected Disclosures Act, 2014.

The employment began on the 2nd September 2001 and at the date of the Hearing continued.

The rate of pay was stated to be €84,876 per annum for 39-hour week.

The Complainant gave a detailed Oral testimony supported by extensive documentation. Full cross examination of both Parties took place.

The Employment commenced in September 2001. The Complainant is a professionally qualified Accountant and worked initially in the Internal Audit Section of the then General Medical Services Payments Board. (GMSPB) Things progressed satisfactorily until June 2015 when the Complainant made a Protected Disclosure to the then Director General of the HSE, Mr O’ Brien.

The issue concerned the role, function and professional integrity of the Internal Audit function of the Primary Care Reimbursement Service (PCRS) – which had replaced /incorporated the GMSPB.

Extensive discussions between the Parties took most of 2016.  The Complainant’s immediate Manager was Mr PB, and the Head of Department was Mr MF. A very heated telephone conversation took place with Mr MF where the Complainant alleged that Mr MF threatened him that “he would be on his own” from there forward. Under FoI the Complainant disclosed correspondence between Mr PB and Mr MF that was very unsupportive of the Complainant.

An investigation into the Protected Disclosure by an Independent Consultant followed. The outcome was most unsatisfactory for the Complainant. It was clearly suggested that what was involved was a Grievance as opposed to a Protected Disclosure. The Complainant queried if the Consultant was appropriately professionally qualified to undertake the investigation.

Shortly afterwards the Complainant was moved away from his traditional work of large scale multi million Euro value Audits and assigned to a very lesser Audit function (less than 1 Million Euro) of Minor HSE funded Charities. The Complainant alleged that this was the first penalisation. Reluctantly the Complainant accepted the new minor role as it still allowed him a “Field role”.

Mr MF retired and was replaced by Ms Dr GS as National Director of HSE Internal Audit. After a year in office by Dr GS the Complainant was informed that he was no longer Field Auditing Small Charities but instead was now assigned to an Administrative /Clerical role summarising other Audit findings prepared in many cases by more junior staff.  He was no longer to have a “Field role”.  This was a clear Penalisation for a Senior professional Accountant of the Audit experience of the Complainant. There was a negative mind set against him in the Senior Management of the Audit Department. He was being kept away from “Field Audits” to effectively, he alleged, prevent him from making any further protected disclosures that might embarrass the HSE.

The Complainant alleged that he had gone from being a Senior Auditor in 2015 overseeing multi million Euro budgets to a Small Charities role (all less than one Million Euro budgets) to what was in effect a basic clerical job. It was clearly and unequivocally a pattern of Penalisation that could be traced back to his 2015 Protected Disclosure.

The Respondent gave an oral Testimony from Mr Tevlin of the HR Office supported by Mr B of the Audit Department. As with the Complainant extensive written material was submitted in support.

The Respondent argued that, firstly, the Complaint lodged on the 11th of November 2021 was completely out of time as regards a Protected Disclosure made on the 16th June 2015.

The Workplace Relations Act ,2015 requires a complaint to be lodged withing six months (12 months by agreed extension) of a contested act, in this case the Protected Disclosure of June 2015.

The Complaint in this case was nearly 7 years out of date. There was no provision for a Protected Disclosure to have a “sine die” quality. Natural Justice would require a Reasonable expiry date and 6- and one-half years is certainly not a Reasonable period.

Furthermore, the issues involved in this case could best be traced back to the reorganisation of the GMSPB and the incorporation into the PCRS organisation. The Complainant’s role had been reorganised from small organisation into a much larger Unit and he had major grievances with the situation as far back as mid-summer 2014. A significant Grievance investigation took place in 2014 /2015. A large volume of correspondence was submitted in evidence. Mr Tevlin pointed out that many issues raised by the Complainant took place before the Protected Disclosure was made. 

The Protected Disclosure of 16th June 2015 was investigated by Mr Treanor, Independent HR Consultant, who issued his report on 25th July 2016.

In November 2011 the Complainant submitted the matter of Penalisation, the subject of this complaint, to the WRC. This arose out of disputed issues with Dr Smith then National Director of Internal Audit. Efforts at Mediation proved unsuccessful.

Mr Tevlin for the HSE pointed out in his evidence that the Treanor Report clearly raised the issue that the alleged Protected Disclosure could just as easily be seen as a Grievance matter. At this time (2015/2016) the Complainant had a number of Grievance issues before the HSE mostly concerned with this immediate and higher Superiors. Mr Treanor had concluded that the Protected Disclosure, while genuinely felt to be so by the Complainant, was more appropriate to the Grievance Processes.

The Respondent, while denying that a Protected Disclosure actually took place, queried whether or not Penalisation of the Complainant had ever actually happened. His issues dated back to 2013 and the merger of the GMSPB with the PCRS. He had gone from being largely independent in his function in the GMSPB to being one of a Team in the PCRS and required to report to a new management structure. This was his underlying issue.

Mr Tevlin for the HSE cited the well-known Labour Court, O’Neill v Toni and Guy Case [2010] ELR 21 and the “but for” argument. The Complainant, it was alleged, had not suffered any Penalisation even if it was accepted, which it was not, that a Protected Disclosure had taken place in June 2015.

In final summary the Respondent maintained that the real issue in this case was the fact that the Complainant did not accept the changes to the GMSPB and the amalgamation into the PCPB. This was an Industrial Relations matter not a Protected Disclosure.

The Protected Disclosure of June 2015 was technically flawed, and irrespective of this, no Penalisation had taken place.

Furthermore, to claim Penalisation in 2021 as a result of a Protected Disclosure in 2015 (6 years before) defies all grounds of Reasonableness notwithstanding the time limit provisions of the Workplace relations Act of 2015.

3:1       Introduction

For an Adjudicator this case posed a number of questions.

Notwithstanding the very extensive documents and Oral testimonies provided these questions could be summarised as follows

1.       Was the case “in time” as per the Workplace Relations Act 2015?

2.       If it is deemed “In time” did a Protected Disclosure, as defined by the Protected Disclosures Act 2014 actually take place

3.       If a protected Disclosure did take place did Penalisation, again as defined in the Act of 2014, follow – the but for test?

Using these questions as a guideline the case and evidence is examined below.

3:2        Was the case “in time” /?

Section 41, subsections 6 and 8 of the Workplace Relations Act 2015 allow for a complaint to be made to the Director General within six months of an alleged breach of the Act and on appeal to an Adjudication officer a further six months may be granted, giving a total possible reference period of twelve months.

In cases under other pieces of Legislation, particularly in the Equality area, the concept of a    “Continuum” or a Continuum of Discrimination may arise. In other words, a “wrong” may be committed prior to the twelve months reference period but be of such egregious effect that it continues to impact negatively on a Complainant. As such it may be possible (but subject to a lot of Legal inquiry and counter arguments) to make a Complaint on the basis of an ongoing wrong.

However, to establish this position a Complainant has to clearly establish that egregious negative ill effects – (penalisations in effect arising from the disclosure) - continued to apply post the Disclosure and were still evident, at the date, of the Complaint referral.

In this case the Protected Disclosure, although contested by the HSE, took place on the 16th of June 2015.

The complaint was referred to the WRC on the 11th of November 2021.

To make the claim of a “continuum” the complaint has to establish that for the period of some six years he was under, what can only be called a “Malign Cloud” with Dr Smiths actions in 2011 being simply a further negative manifestation.

The period in question is six years and nearly five months.

During the period the Complainant received his full salary but was deployed to work that was not to his choosing or in keeping with his own perceived Personal /Professional status. In essence he was now part of a much larger Audit function with varying tasks. Staff such as the Complainant could be deployed to a range of tasks and if dissatisfied with their deployment could raise Grievances, a process that the Complainant was very familiar with. It does not follow that this was all a process of negative Penalisation from the June 2015 Protected Disclosure.

Section 3 -Definitions of the 2014 Act is set out for guidance below.

"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.

To maintain a Continuum argument the Complainant would have to establish that he was Penalised, as set out above, for the six years and four months to the 11 November 2021.

The Complainant is absolutely no stranger to the HSE Grievance Procedures. Numerous Grievance issues /cases were referred to circa 2015/2016. Most were resolved by local processes.  Mr Treanor, the Independent Consultant in 2016, although his status was questioned by the Complainant, raised for example, the issue of whether or not the 16th June 2015 was a Grievance or a Protected Disclosure.

Issues of his work location/professional duties during 2013 to 2021 are matters of Grievances

3:3        Adjudication Summary Conclusions

Accordingly and having carefully studied, at length, the extensive correspondence, reports of meetings and the Oral Testimony with full cross examination of all parties, the Adjudication view has to be that the logical link to support a negative continuum or malign linkage between a Protected Disclosure in June 2015 and the alleged Penalisations of the Complainant by the Director, Dr S in 2021, was not made out.

Accordingly, the complaint under the Protected Disclosures Act,2014 is “Out of Time” and cannot proceed.

Question Two and Three above are, it follows, no longer for consideration.

Protected Disclosures, Time Limits, Continuum Argument.