Complainant

Respondent

Parties

Don  Culliton

Department Of Justice

Representatives

  Self

M P Guinness BL instructed by  Chief State Solicitor's Office

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-00053884-001

26/11/2022

On November 26th, 2022, the Complainant made a complaint to the WRC under the Protected Disclosures Act 2014. The complaint related to events which commenced in 2018 when employee J began a complaint process about what I will loosely described as the way he felt he was treated by the employer including a suspension and proposed transfer. That complaint was made to the Minister by way of a disclosure. The Complainant in this case was directly involved in the original events in his capacity as Head of HR. The Respondent has in place a screening process for assessing complaint sunder the Protected Disclosures (PD) Act. The complaint by employee J was duly screened by an independent assessor and thereafter on their recommendation was treated as a complaint under the terms of the PD Policy/Act. External investigation providers RSM were engaged by the Respondent. Terms of Reference were drawn up for an investigation which commenced in January 2019. The Complainant in this case was not named in the original terms of reference. He did however attend for an interview with RSM on 24 May 2019 as a witness. He had received written questions in advance of the interview. Even at that stage it is apparent that he had misgivings about the matter being investigated as a protected disclosure and with the tone of the questions posed by the investigator which he considered accusatory.  In June 2019, the Investigator interviewed another named witness and, according to later communications issued to the Complainant, based on the evidence of that witness, it was decided to change the Complainants status from that of witness to that of Respondent. The Irish Prison Service was also now included as a Respondent. This change of status was advised to the Complainant on 29 July 2019 and after his first interview. It is this change of status and further later changes in the terms of reference which lie at the heart of the current complaint under the PD Act which the Complainant regards as having changed his status and ‘lowered the bar’ in the matters to be decided or the basis on which they would be decided, consequently causing him various detriments.  The Complainant began communications with Mr. Walter Johnson on 5 September 2019 on the change of his status to witness and other aspects over the succeeding months. The correspondence which began on that date is the commencement of communications which are described by the Complainant as protected disclosures for the purpose on this complaint under the 2014 Act. In all the Complainant cites four items of correspondence as individual protected disclosures.

 The investigator met with the Complainant again on 5 September 2019. That meeting and the correspondence which preceded it became quite disputatious, and that tone continued in subsequent correspondence between the Complainant and the Investigator. They never met again. Over a period of more than twelve months, there were communications between RSM and the DOJ regarding the TOR and as to who would represent the IPS as the Respondent and with the Complainant who continued to raise issues with RSM. In January 2020 further revised terms of reference were issued to the Complainant by RSM. The language of the terms of reference was changed somewhat from the earlier version in this revised text. These are the terms which the Complainant describes as lowering the bar with later consequences for him, linking those terms directly to the claimed penalisation by way of repeated detriments as defined under Section 3(1) (e) of the elements of penalisation: unfair treatment.

 In February 2020 the Complainant replied to a series of written questions from RSM (issued at his request) along with referencing a significant number of queries of his own regarding the procedures which he regarded as unanswered

 In December 2020 the Complainant advised that he had no comments to make on the most recent documents issued to him. At that point the investigator began to prepare the draft report. The Complainant did write to RSM challenging part of their initial findings in the draft report which issued in February 2021. The Department of Justice also made observations. In June 2021, having considered the various observations, RSM issued a final report in July 2021 which contained a change from the draft report, more consistent with the submissions of the Department of Justice and the Complainant i.e., that the Irish Prison Service alone was the correct responsible person.

As provided for in the PD policy, the Discloser-employee J - appealed the findings of the RSM report. The Department of Justice engaged Mazars to conduct the review. This is a paper review stage. The Complainant was not informed of the appeal or the review. In their review report in June 2022, Mazars found the investigation was conducted appropriately within the protocol but disagreed with one of the findings issued by RSM declaring the IPS as the responsible person in a significant element of the complaint. Mazars found that the Complainant in this case was also a responsible person, essentially a reversal back to the RSM draft report finding. The review report was provided to the Complainants line manager and employee J. The finding and the haste with which the report was sent to his line manager and employee J are regarded by the Complainant as detriments. The finding is linked by the Complainant back directly to the change in the terms of reference-the lowering of the bar which he in turn claims was as a result of him raising protected disclosures.

The Complainant engaged with his trade union and they and later a solicitor supported him in complaints about the conduct of the review by Mazars without his knowledge and without any input from him. On August 22nd, 2022, Mr. Johnson acknowledged to the AHCPS that fair procedures had not been followed in the review, ‘taking no position with regard to thereviewers [Mazars] assessment of responsibility between respondents.’ This correspondence is cited as one of the detriments. On November 9th, 2022, following legal representations, the Department of Justice set aside the findings from the review report on grounds of breaches of fair procedures and natural justice in the case of the Complainant. On 21 November, he replied stating that the letter of 9 November did not satisfactorily address all matters raised and that he would be referring a complaint to the WRC alleging penalization.

On 26 November 2022, the Complainant submitted a complaint of penalisation under the 2014 Act to the WRC for having made a protected disclosure.

At the time of these events, the Complainant was the Head of Human Resources in the Irish Prison Service. He has since been appointed as Head of Operations. Mr Walter Walsh is the Head of Internal Audit who is named in the PD policy of the Department as a person to whom a disclosure can be made.

In his supplementary submission to the hearing and as requested, the Complainant gave specifics about the ‘series of disclosures’ which he had described in his initial submission as commencing on 5 September 2019.

Disclosure 1

Email to the Head of Internal Audit 5 September 2019

His description of that disclosure is that: ’he provided relevant  information with sufficientfactual content and specificity and clearly set out in that mail that there was the issue of compliance with a legal obligation pursuant to S.I. 464/2015.’ Further more ‘it was his reasonable belief, that the Department and/or its agents, had failed to, were failing or likely to fail to comply with a legal obligation i.e. section 52 of SI 464/2015’

It is his submission that the words expressed in that email amounted to an allegation which tends to show that the approach adopted by RSM and overseen by the DOJ was grossly negligent and that if the DOJ/RSM continued with its approach then it had the potential to result in a detriment being suffered by the Complainant.’

The Complainant met with RSM later that day.

Disclosure 2

9 September 2019 Email to the Head of Internal Audit

Further information provided to the Head of Internal Audit. ’He provided relevant information with sufficient factual content and specificity’ . This referred to his meeting with RSM on 5th September 2019 and ‘numerous unacceptable and unfair procedures adoptedby RSM during the course of that meeting’. In his submission he described being ambushed at that meeting as he was expected to respond to hundreds of pages of documents RSM were relying on hearsay evidence. The basis for adding him as a Respondent was misconceived.’

‘The words expressed in that email amounted to an allegation which tended to show that these acts or omissions by or on behalf of the Department were oppressive or grossly negligent or constitute gross mismanagement and that the Department and/or its agents, had failed, were failing or likely to fail to comply with a legal obligation.

Disclosure 3

23 September 2019 email to the Head of Internal Audit

In informing the Head of Internal Audit that’ RaiseAConcern had failed to determinewhether or not the original complaint was an issue of private interest.’ (that part of the relevant formwas left blank). This was submitted as evidence of further flaws in the matter. This was submitted as ‘acts or omissions by or on behalf of the Department and/or its agents, (which) were grossly negligent or constitute gross mismanagement.’

Disclosure 4

18 October 2019 -Letter to RSM and the Head of Internal Audit

‘He provided relevant information with sufficient factual content and he set out over several pages various unacceptable and unfair procedures adopted by RSM in the course of the investigation.’

‘He raised issues about the terms of reference and the stated position of RSM that they were on a fact-finding mission only. He raised the question of representation and the right to cross examination which he clearly states are being denied to him.’

He referred to several other procedural deficits regarding the conduct of the investigation.

Extracts in italics are from the Complainants submission/evidence to the hearing.

On the 10th of January 2020 he was informed by RSM that the terms of reference were changed again. On February 25th, 2020, he was informed by RSM that the terms of reference ‘were changed ‘following consultations with the Department’. ‘No further explanation wasprovided(for the changes in the terms of reference in 2020)’.

It is the Complainants contention that the four disclosures made by the Complainant could not be seen as anything other than the disclosure of information regarding relevant wrongdoings within the meaning of the Act.

Penalisation

The Complainant was penalised by way of changes to the terms of reference of the investigation because he made protected disclosures commencing on 5 September 2019.

On the second hearing day, the Complainant was asked to clarify the nature and dates of the detriments he claims followed from his making the protected disclosures as outlined.

Preliminary Report February 2021

The finding in the preliminary report resulted from the further changes in the Terms of Reference for the Investigation of the disclosure by Employee J which were advised to him in February 2020. This change in the terms of reference occurred after most of the evidence had been taken by way of interviews including all of that of employee J. It is his contention that these ToR were changed only when it became apparent that there would be no negative findings from the earlier terms of reference and as a direct response to his protected disclosures about the investigation which he made commencing on 5 September 2019.

Unfair Treatment

7 July 2022 Findings in the Mazars Report

The negative finding against the Complainant in the review report of July 2022 was directly related to the change in the terms of reference made on 10.01.20 as a result of which there was a finding against the Complainant. This resulted from the lowering of the bar against which the facts were to be assessed.

Detriment: Unfair Treatment

The hasty circulation of the Mazars review report (which he had no prior knowledge of)  to his line manager and employee J containing the negative finding  could have damaged his reputation. The Department failed to protect his good name and reputation.

Detriment Unfair Treatment

The response of the representations to the Department about the flawed review process on 25.08.22 in which they stated they took no position on the finding left that finding hanging over him which resulted in him engaging legal advisers at some expense to have that finding overturned.

Detriment: Unfair Treatment

Additional oral evidence from the Complainant

When describing the detriments, the Complainant referred to his correspondence with the Respondent in 2019 as leading to the changes in the terms of reference from January 2020 onwards after he raised issues and which acted as the means by which findings were made against him. Everything that happened later could be traced back to those changes which lowered the bar for the findings which followed. This was an inexplicable alteration for which he never received an explanation form the Respondent.

Barrett Judgement

The Complainant submitted that paragraph 101 and 103 of the Barrett which confirmed that there was no requirement to expressly invoke the PD procedure within the employment for the reporting to be considered a protected disclosure. It was his contention that in his four disclosures he provided sufficient information such that it was not necessary for him to invoke the procedures. The law says under section 5.8 it shall be presumed that a report is a protected disclosure and this was affirmed in section 115 of Barrett-unless the respondent can show they are not protected disclosures, they are. Section 101 refers to the Alderhay Judgment referring to the detriment. The change in the terms of reference in 202 were as a direct result of him raising issues regarding the terms of reference with the Department and the correspondence e showed discussion between the Department and RSM about the terms of reference following his disclosures referring to an email of 13.11.2019. These were acts of gross mismanagement and a gross miscarriage of justice as set out in Section 5 of the 2014 Act and led directly to the improper findings of July 2022. 

The Respondent does not accept that the Complainant made a protected disclosure. As a preliminary matter, the Respondent questions the jurisdiction of the Adjudication Officer to entertain the complaints.  In the course of the second day of the hearing, the detriments described by the Complainant were questioned by the Respondent as to whether they constituted detriments at all and therefore contained any element of penalisation in the circumstances.

Preliminary Issue: Time Limits-Application of Section 41(6) of the Workplace Relations Act 2015

In their written submissions, precedents established by the High Court and the Labour Court were cited by the Respondent in support of their contention that complaints submitted  outside of the six-month time limit set out in Section 41(6) should not be entertained by virtue of the reasonable cause extension provision as none existed in this case and/or as the disclosures claimed occurred outside of the twelve-month limitation, the Adjudication Officer does not have jurisdiction to entertain those complaints. The Complainant wrote ‘certain acts of penalisation occurred in the course of the clandestineprocess the dates of which were unknown to me at the time and were only brought to his attention when he received the letter from the Head of Internal Audit on 7th July 2022.’ The Respondent submitted that no dates for the alleged acts of penalisation had been provided by the Complainant other than the reference to the clandestine process. The Complainant is trying to suggest that the 7th of July be the date for the purposes of the time limit under Section 41 of the Act. No legal basis is put forward for the suggestion of the “date of knowledge” as the date for the purposes of the Act and this is not a matter that can be considered under the 2015 Act. A number of acts of penalisation are identified yet no complaint was made about them within the time limits set out in the 2015 Act.

The Respondent submitted that the order in which the issues must be determined are: Is the claim in time? Has the Complainant made a protected disclosure; Has he been penalised; Has there been a detriment?

Background and further arguments:

In 2028, an employee of the Irish Prison Service made a disclosure to the Minister as to how a particular incident which involved the transfer of a prisoner was dealt with at the time. That other employee is J in this text. The Disclosure was communicated to the Head of Internal Audit as the recipient for Protected Disclosures.

Under the policy in place since 2015, the disclosure was referred to RaiseAConcern an external company that examines a disclosure to see if it should be investigated as a protected disclosure. The independent assessor determined that the matter should be investigated under the Protected Disclosures Policy. Another external services provider, RSM, was appointed to conduct the investigation under Terms of Reference drafted by the Department following the recommendation of the independent assessor and with observations from RSM.

The investigation commenced and, after receiving information from a witness in May 2019, RSM changed the Complainants status from witness to respondent. This change allowed the Complainant in this case to receive information which allowed him the opportunity to give his perspective.

The Terms of Reference were also amended in November 2019 ‘to ensure the wording ofthe allegations was non adversarial and, in an effort to complete the investigation.’

On 5 September 2019, the Complainant objected to the change in his status to that of Respondent. His correspondence indicates an in-depth knowledge of the PD Policy in the employment and the legislation as he quoted from both. At no stage in that correspondence or at any stage until the reference to the WRC in November 2022 including a period when he was legally represented, did the Complainant allege that he was raising any matter as a concern to be investigated under the PD procedure. Nor did he ask for his concerns to be investigated under that policy. There is a form for submitting a protected disclosure and this was not used by the Complainant. He had dealt with complaints himself in his HR Role. Given his role as the Head of Human Resources in the Irish Prison Service and his experience and knowledge, it was submitted on behalf of the Respondent that it is implausible to suggest that the Complainant was making a protected disclosure at any stage in his communication with the Respondent from 5 September 2019 as claimed.

RSM submitted a draft report in February 2021. Three of the four allegations were not upheld. A fourth was partly upheld against the Complainant and the Irish Prison Service. . On May 25th, 2021, the Department of Justice indicated to RSM that the partial  finding should be made against the Irish Prison Service as the body corporate. In the final report issued by RSM in July 2021, the partial finding was amended and changed to reflect the view of the Department of Justice expressed RSM on May 25th.

The Discloser requested a review of the findings, as provided for in the policy. Mazars were appointed to carry out the review which was concluded in July 2022. That review disagreed with the rationale for finding two of four (the one which was a partial finding against the complainant in the RSM draft report and subsequently altered to the Irish Prison Service only).Mazars found it unreasonable that both the Complainant and the Irish Prison Service were not held responsible. The Complainant was informed of the outcome on July 7th, 2022.

There followed correspondence from the AHCPS Trade Union on behalf of the Complainant which culminated in the letter of 25 August issued by Mr Walter Johnson stating that no position would be taken in relation to the findings of personal responsibility and stating that ‘the process was fully concluded’.

There followed correspondence from solicitors on behalf of the Complainant. On 9 November 2022, the Assistant Secretary of the Department  confirmed to the Complainants solicitors that the review(by Mazars) was cancelled/rejected as being conducted contrary to the rules of natural justice in not allowing the Complainant to be heard. On 10 November the Department issued further correspondence to the effect that, as there was no fault found with the RSM process, the findings of that report represented the conclusion of the matter in relation to the specific disclosure by employee J.

On the absence of any reference by the Complainant to a protected disclosure, in addition to the points about knowledge of the procedures and the policy, the Respondent submitted that in relation to his correspondence from 5 September 2019, which is being  now described as  protected disclosures, the Complainant was provided with every opportunity in phone calls, meetings letters/email in addition to the representations made on his behalf by representatives to inform the employer that his were protected disclosures .

In relation to the items claimed as protective disclosures, as far as the Respondent was concerned, the Complainant was raising issues about the conduct of an investigation. This a common occurrence. If every issue of concern or objection raised by an employee about the conduct of a staff investigation were to be regarded as a protected disclosure, the system for investigating  complaints under various policies would become inoperable.

The complaint of penalisation

The Respondent relied on the thinking of the Labour Court contained in Toni and Guy which cited the ‘but for’ test as the one to be applied when considering if penalisation, i.e. an act or omission had occurred. It was submitted that it is for the Complainant to establish the causal link between the penalisation imposed and the protected disclosure made. The alleged protected disclosure arose in September 2019. The penalisation must have occurred between 27 May 2022 and November 26th, 2022 (the date of the complaint to the WRC).

In their submission the Respondent set out the elements of penalisation contained in Section 3(1) of the 2014 Act. The Respondent then set out in their submission their understanding of the detriments under four headings, three of which were described as ‘out of time’. Those understandings were put to the Complainant on the second day of the hearing at which time he clarified the dates and nature of the detriments as set out in the summary of his case. In any event the Respondent cited Conway v Department of Agriculture Food and theMarine 2021 ELR 142 where Hyland J said this Section required that “the detriment must be of a nature to harm or damage the person making the disclosure.” In that case the judge understood that the claimant was frustrated and annoyed at the Departments delay in investigating his disclosures and in responding to his queries but there ‘was no evidence whatsoever’ ‘that this lack of response’ impacted upon his situation in the workplace orelsewhere.

In reference to the circulation of the Mazars Report to his line manager and the disclosure this was described as something the Complainant felt ‘could’ have damaged his reputation and that report was cancelled by the Department following representations on his behalf. There was no evidence of actual damage to his reputation.  At the hearing, the Respondent witnesses gave evidence on the changing of the terms of reference of the RSM investigation. It was not accepted or it was unclear what detriment had occurred. The Complainant had failed to establish any harm or detriment that he actually suffered because of the alleged penalisation.

Extracts in italics are from the Respondent written submissions.

Witness Evidence

Walter Johnson

The witness is the Head of Internal Audit who has specified roles under the Departments Protected Disclosures Policy as a person to whom a concern can be reported and who is charged with arranging the investigation of reported concerns.

In his evidence Johnson stated that the issues raised by the Complainant were not regarded as protected disclosures. They were regarded as issues about processes and procedures. If every complaint about procedures were to be considered a protected disclosure, the procedures could not function. Concerns being raised about the conduct of the investigation which were discussed with RSM. Asked if Mr Culliton was familiar with the PD policy  and how to make complaints, the witness said yes, that he had assisted the witness with previous disclosures. There was some dialogue with Mr Culliton in cross examination concerning the use or otherwise of the form for reporting a protective disclosure and the number of complaints handled by Mr Culliton. It was agreed that the forms were not always used-in at least one handled by Mr Culliton and that he was unsure if the total number of disclosures handled by him was around 3.

Eileen Walsh

The witness is the protected disclosures manager. Her evidence in the main related to a telephone call with the Complainant on 28 November 2019.Her account of that call was read to the hearing. She informed the Complainant that the terms of reference had changed. He respondent with his own view of the changes and also other procedural issues including that the RSM investigator be removed from the investigation and that the investigation should be scrapped altogether and his right to legal representation.   The call lasted about 15 minutes. Beyond that she said she could not recall whether the Complainant had spoken about a protected disclosure but she could not recall much about the call-it was four years ago. The witness said she had engaged Mazars as is standard practice in all cases where a review is requested. Employee J requested a review.

Declan Walsh RSM

The witness gave evidence that it has happened on two occasions that a respondent was added to the terms of reference of an investigation. During this investigation further evidence came to light after the Complainant interview which indicated that he should be named as a Respondent. Care was needed before identifying someone as a respondent too early. Evidence was then to be taken from the Complainant and the other respondent as per the revised terms of reference.

The witness spoke about liaising with the Department and referred to quality checks. In re direct he did not agree that all of the evidence had been taken when the ToR were altered. Mr Culliton had not completed his evidence at that stage. The other Respondent was also required to give evidence.

On the subject of the lower bar as claimed by the Complainant, the witness referred to the difficulty in issuing findings of facts under the earlier terms. This was investigation charged with establishing findings of facts.

Barrett Judgement

Counsel for the Respondent referred to section 114 of the Barrett judgment which referred to the absence of a report under eh Act was not an absolute bar to defining a report as a protected disclosure. She emphasised the word absolute as meaning that the factor of not making a report could not be entirely ruled out in considering whether a report was a protected disclosure. In this case the Complainant was the Head of HR and experienced in what was involved in making a protected disclosure. He had engaged in communications with the Respondent directly and on his behalf right through into 2022 and never once indicated that he considered his communications to have been a protected disclosure. He was aware of the policy and the steps to be taken and did not use them. The issues he raised were concerned with processes and procedures. They were not protected disclosures. If everything raised regarding a procedure under the policies was to be regarded as a protected disclosure, the investigations would never be completed.

The causal link to the changes in the TOR and the alleged detriments were disputed as being connected and moreover that any detriments had occurred. Any issues raised by the Complainant regarding the first draft report and the review were fully taken on board and there was no detriment to him.  There was no damage to the Complainant as a consequence of the penalisation claimed by him.

Preliminary Issue - Time limit

The case made by the Respondent that the complaint/s are outside the six and or twelve-month time limits under S. 41 of the WRC Act of 2015 were based, in the main, on the date of the claimed disclosures. There was a reference to claimed detriments or some of them also being outside the time limits provided in the Act. To be fair to the Respondent some of their confusion and assertions around time limits came from a lack of preciseness of the dates and nature of the detriments claimed by Mr Culliton which was not fully clear until the second day of the hearing. There was also an over reliance by the Respondent on the date of the events which well predated the date of the PD complaint which was not mentioned as such until November 2022, well over two years after the first and crucial event claimed by Mr Culliton and to which the later detriments related to directly or indirectly. Indeed, the Complainant acknowledged in his own first submission that an issue regarding the time limit for the purposes of the Act might arise. I have decided to disregard any issue of a time limit applying to the detriments claimed in the three instances claimed, the report of July 2022 and the circulation of same and the response of Mr Johnson in August 2022 to protests about the procedures used to compile the report in July 2022. These fall within the six-month time limit provided for in S 41. As a consequence of this finding, the four protected disclosures claimed all fall to be considered. In considering the question of the time limits there can be no question but that there was an almost constant continuum of connected events in this case commencing in 2018 which in turn all related to the one event, the complaint by employee J. If there was ever to be a case of a direct trail of connections between the elements of the claimed disclosure/s and the events which form the basis of the complaint of penalisation in relation to a PD complaint, this is one such example. All of the issues arose within the same context, the original complaint by employee J and the investigation procedures followed thereafter.

Was there a protected disclosure?

Section 5(8) of the 2014 Act provides that the burden of proof to establish that the disclosure of information claimed was not a protected disclosure lies with the Respondent.

(8) In proceedings involving an issue as to whether a disclosure is a protected disclosure it shall be presumed, until the contrary is proved, that it is.

From their submissions one would find it hard to accept that the Respondent in this case fully understands that liability lies fully with them. Perhaps they are not unique in that regard. Therefore, it is worth emphasising, that the burden of proof required to establish that information conveyed by an employee was not a protected disclosure for the purposes of the Act, lies squarely with the employer. Because there is no definition or standard in the form of written reporting, there will be instances where the fact of making a report will be disputed as will what was actually said.  Given that the Complainant is relying on four emails he sent, the fact of his having communicated and what he communicated are not in doubt.

In their defence, simply dismissed the claimed disclosures as issues or complaints about the procedures being followed in an investigation and the investigator.  The Respondent relied heavily on the ‘he didn’t tell us’ ‘he knew better’ approaches rather than focusing on the contents of the emails in any detailed way. Their main argument was tested in the High Court and again in the Court of Appeal in the Barrett Judgment and found wanting in the Court of Appeal as the appropriate test. The information piece of the equation was emphasised by Hogan J to such an extent that he remitted Rosderra to the Labour Court for further evidence on that very point.

The delay in raising an issue as a protected disclosure may be of some relevance as much as the delay in issuing proceedings to strike down an investigation was so important in the Barrett case. As might be the role of the Complainant within an organisation as in both the Barrett and Culliton cases where they held positions which involved handling disclosures and therefore knew more than most about using the internal procedures and did not do so  in either case until they went to a third party.   The level of interaction with those in charge of investigations regarding the very issues claimed much later as protected disclosures might be a consideration. But wherever they are a consideration, perhaps to a limited extent in the claim of penalisation or even redress, the Court of Appeal has made it abundantly clear in building on the Rosderra Judgement,  the key to any decision as to whether a communication is a protected disclosure  is whether or not the disclosure claimed was one which is protected under the Section 5 of the Act of 2014( in this case) and that it is for the Respondent to prove to the contrary and this applies to the information and the reasonable belief tests. The following extracts from the Court of Appeal are cited in support of the forgoing conclusions.   

 Knowledge of the Complainant (and differing with the High Court)

“101. Humphreys J. also said that an appellant need not expressly invoke the 2014 Act when making the communication in question in order for it to be recognised as a protected disclosure. Explaining why this was not “automatically crucial”, he said at paras 16-17:

“… There is no necessity for an individual employee to consider the situation in statutory terms until such time as adverse consequences such as dismissal materialise. Indeed, it could be counterproductive to do so. The breakdown of an employment relationship, like that of any relationship, is not necessarily a linear process with entirely logical and rational steps on all sides. There can be vacillation, mixed feelings, false dawns, reconciliations and setbacks; and sometimes it is only after the person picks themselves up off the ground, if even then, that they start to figure out what actually happened. The defendants submit that “the plaintiff has attempted to retrospectively characterise matters which are not and cannot be protected disclosures as such in an attempt to avail of the protection provided by s. 11 of the 2014 Act”, but that is not how such situations automatically evolve in practice. One can make a protected disclosure without invoking the 2014 Act or without using the language of “protected disclosure”. It is often only after the victimisation, dismissal or other adverse consequence arrives that one has to “retrospectively” figure out what really happened and analyse it in the statutory language. There is nothing wrong with that process and it is certainly different from “retrospectively” creating a case from nothing”.

102. Again, I would agree with this as a general proposition.”

“115. An important issue is the question of the burden and standard of proof in an application for an interlocutory injunction sought by an applicant who claims that there is a connection between having made a protected disclosure and suffering a detriment (actual or anticipated). Sub-section s. 5(8) of the 2014 Act provides that in proceedings involving an issue as to whether a disclosure is a protected disclosure it shall be presumed, until the contrary is proved, that it is. Thus, there is a statutory presumption in favour of an applicant on this particular issue, although of course it is a rebuttable presumption. The use of the words ‘until the contrary is proved’ suggests that the burden on a respondent who seeks to rebut the presumption is to establish the contrary on the balance of probabilities.

And

Summary

(vi) The fact that the 2014 Act was not expressly invoked at the time of the making of the communication is not an absolute bar to the communication being deemed a protected disclosure after the event; (CGI)

In a nutshell, any employer approaching a complaint under the current(and later) legislation would be well advised to come to adjudication prepared to overcome the burden of proof as to whether a report made was a protected disclosure before they engage in any other defence under the Act. In this case there is no doubt there were communications on the dates specified by the Complainant.

The fact that the Respondent did not place a great deal of emphasis on or provide much detail to dispose of their burden of proof as required by Section 5(8) set by the legislation does not detract from my responsibility to examine the disclosures claimed by reference to the legislation having regard to the Court of Appeal in the Barrett and related judgements. This is particularly so given that on the first day of the hearing I directed the parties to consider that judgment and invited them to make submissions on its application or not to the facts of the current complaint. Indeed, if Adjudication Officers were fortunate enough to have full and rounded arguments related to legislation before them in every case, or even all of the relevant documents, the task of applying the legislation to the facts would be a great deal simpler. Ours however is an inquiring role and we must inquire into the application and interpretation of the legislation to the facts and not confine our consideration to the arguments made by either side. Fortunately, I have the Barrett Judgment to rely on and hopefully my interpretation and related application to the facts in this current case are correct.

There are remarkable similarities between the case of Mr Barrett and that of Mr Culliton. Both held the senior HR post in their organisation. The two organisations form part of the justice system operating under the same government department. Each of them sought to have an investigation process in which they were named struck out. Each of them made complaints to a third party of protected disclosures and penalisation related to the investigation processes which they were subjected to. In both cases the Respondent argued that they could/should have used the internal PD processes if they believed they had made protected disclosures. Each had claimed four items of correspondence concerned with the investigation process were protected disclosures.  For all the similarities between the sets of circumstances, there are significant differences. One, is that part of his case, the substantive case brought by Mr Barrett in relation to those items of his disclosures which were found to fall within the legislation as protected disclosures has not yet been heard. A second is that those issues which remain to be heard in that other case are connected with very high profile and publicly known issues because they were discussed/disclosed at public fora. Another is that while Mr Barrett found himself in a disciplinary process, that did not arise at any stage in the case of Mr Culliton. There was a ’time limit’ issue raised by the Respondent in both cases and whereas that proved fatal to Mr Barrett’s case, the same cannot be said in the current case.

In my view the import of the Barrett Judgment affirming as it does support for the Rosderra Judgment and as they apply in this case, is the application of that key test of ‘information’ where the burden of proof lies with the Respondent to disprove. That information is to be aligned to a reasonable belief and the definition of a wrongdoing as defined in S. (3) of the 2014 Act is linked directly to these other elements requiring examination. Rosderra is somewhat different in that the case turned on the health and safety aspect of a definition of a protected disclosure. However, both in that case and in the Court of Appeal, the information actually provided(or not provided in the case of Barrett) was considered crucial to determining whether there was a protected disclosure. In Rosderra the question remained open as it was left to the Labour Court to determine that issue. In the Barrett Case the Judgment dealt with the four items of correspondence claimed as protected disclosures. In two of those items the Court of Appeal expressed concern about the burden of proof aspect and whether it was fully applied by the High Court. Regarding the other two items however, the Court of Appeal was fully satisfied that the contents of those communications did not satisfy the information test. And it is those two letters which I consider the relevant comparison for the purposes of this current case. As the other two letters claimed by Mr Barrett were concerned with questioning whether the person who had originally complained was in fact still pursuing that complaint about him based on information received by him, I do not consider the decisions in relation to those letters fully relevant to the current complaint.

The following are the extracts from the Court of Appeal Judgment in ruling out the two items of correspondence claimed as protected disclosures which are relevant in this case.

“127. The terms of the letter are described more fully above at paragraph 29. If one strips back the heightened tone of the letter to reveal the underlying essentials, it can be seen that the letter sought clarification as to who had appointed Ms.Mulkerrins, asked for further particulars of the complaint, complained about its vagueness, complained about delay, sought documents, expressed shock at the appointment of Senior Counsel as investigator, considered the reference to discipline to be prejudicial, and asserted similarities between the ongoing process and the previous Templemore events. There is no informational content in any of this. The appellant was essentially seeking (rather than giving) information and expressing his opinions on the process thus far. It may be noted that the appellant did not, in that particular letter, refer to any conversations with Assistant Commissioner Fanning, in contrast to his two August letters which are discussed below. I agree with the High Court judge’s assessment in this regard, and it does not matter that she may have overlooked the statutory presumption, nor whether she unduly confined herself to one sub-paragraph of the section, as it ultimately makes no difference to the outcome in respect of this communication.

128. I accept of course that, as was made clear by Hogan J. in Baranya, the fact that a communication contains or amounts to a grievance is not inconsistent with-it containing information. However, as Hogan J. pointed out, not all grievances necessarily contain information; this is a matter which has to be examined on a case by case basis. In my view, the letter of 29 June 2018 did not have any informational content and was instead a complaint about the fact that a disciplinary process had been initiated and about the procedures which were being adopted in that disciplinary process. It is entirely artificial to try to characterise such complaints as having informational content for the purpose of the protected disclosures legislative regime. I agree with the High Court judge in that regard.”

Extract Email 05.09.2019 – Protected Disclosure 1

“I am entitled to proper protections from my employer, the Department of Justice, and I am also entitled to proper constitutional protections in the context of natural justice and fair procedures with regard to the matters under investigation. I am of the view that I have been denied these protections.”

“While I am very willing to cooperate with an investigation into the matters complained of, the issues below are fundamental concerns in relation to all stages of the current process, which I believe is seriously flawed, and I am requesting that these matters be addressed...

1.     “I would be grateful if it could be confirmed that the matter which is the subject of this investigation does not fall within section 5.5 of the Protected Disclosures Act and on what basis you have formed that view.”

“The issues that are the subject of this complaint are matters that solely relate to actions of the Discloser in the conduct of his duties and therefore after (sic) matters of private interest rather than public interest and are appropriate to the grievance procedure rather than the PD Policy. Again, can the DOJ confirm the basis on which it decided to process these personal grievances under the DOJ PD Policy.”

“In addition the PI accepted evidence from XX in circumstances that are unclear. No explanation has been provided regarding the submission of this evidence, in what circumstances it was given and why it was accepted. Why was the Discloser entitled to acquire supposed corroborating evidence and yet the PI failed to provide me with the right of reply in circumstances where it was clear that the allegations were directly against me. You might clarity this matter.”

“RSM subsequently invited me to a meeting in May 2019 as a witness. This invitation and subsequent questioning breached my right to natural justice and fair procedure.

RSM has recently denied me the right to be represented on these matters [in conflict with S.I. No. 464/2015]... The position adopted by RSM to deny me representation on this matter is in conflict with the law. As a result of the foregoing RSM has demonstrated its inability to adopt fair procedures in this investigation. The investigation failed to provide me with full disclosure and/or full disclosure in a timely manner.”

“I am to ask whether the DOJ continues to stand over the process given the fundamental flaws and lack of fair procedure highlighted above.”

09.09.2019 PD 2

“...I wish to raise further matters in relation to the conduct of this investigation.”

“As a result of the investigator’s opening remarks at this meeting it appears that he has other evidence to put to me. I requested details of these matters and I was advised to read the documents submitted to me in hardcopy copy some days earlier. ...The position adopted by the investigator is wholly unacceptable and extremely unfair. To quote a phrase uttered by Counsel in the course of the Flood Tribunal, the investigator appears to be attempting “to ambush, spring traps or surprise the witness or pull rabbits out of hats”... I am now calling on the Department as the initiator of this investigation, in addition to the matters raised in my previous mail to set out the following in writing.” Followed by five points regarding authority and evidence related to the change in the Terms of Reference.

Reference is also made to High Court and Supreme Court decision regarding the right to representation and the right to cross-examination.

23.09.19 PD 3

“Might you be in a position to indicate when I can expect a reply. ... It appears to me, and maybe I am wrong, that raise a concern failed to determine whether or not this was an issue of private interest. They simply left that section blank. Further evidence of the significant flaws in this matter.”

Response of Department following meetings on the 2nd and 17th of October and items discussed

·       The contents of your emails of the 5th, 9th and 23rd of September.

·       Your concerns that the independent investigation is flawed.

·       Issues in relation to the independent assessment of the PD.

·       The legal questions raised with the IAU which the IAU has sent for legal advice.

·       That a meeting with the IPS PD managers and the IAU was taking place on the 8th of October to ascertain if there were any other issues in relation to the independent investigations.

That letter deals with some of the procedural issues raised by the Complainant.

18 October 2019 PD 4

To RSM cc Head of Internal Audit and AHCPS

This letter refers to correspondence from RSM of the 4th of October 2019 and states:

“Regrettably this correspondence falls well short of addressing the fundamental matters raised in the course of our meeting 5th September 2019. Indeed it has only served to copper fasten my view that this whole process is fundamentally flawed and must be set aside.”

On the issue of private interest and that section having been left blank by raise a concern:

“It is clear that the issues that are the subject of this complaint are matters that solely relate to the actions of the Discloser in the conduct of his own duties and therefore after (sic) matters of private interest rather than pubic (sic) interest and are appropriate to the grievance procedure rather than the PD Policy. It now seems that despite raise a concern’s failure to address the matter the Department has reverted to you to “confirm it is satisfied” that the matter warrants investigation. Can RSM or the Department clarify the following (a) has raise a concern been allowed mend its hand in this regard? If so in what circumstances. (b) Alternatively, on what authority has a review of the PI been conducted? (c) What specific section of the DOJ PD Policy or the ToR for this investigation allows this? (d) Who conducted this review? (e) On what basis has this decision been arrived at?”

As can be seen in PD 1-4, in his four items of correspondence Mr Culliton was raising issues about the investigation process. He objected to parts of it, he criticised other parts of it and he posed a number of questions. His negativity was aimed at the investigator from RSM and the questions were addressed to the Head of Internal Audit except in one which he addressed to RSM and ccd to the Head of Internal Audit.

In my considered view and by any objective reasoning taking into account the judgment of the Court of Appeal in finding against Mr Barrett in relation to the correspondence where he was questioning and querying the investigation, none of the four disclosures in this case provide information which fall within the definition of a protected disclosure. The Court of Appeal analysed very similar correspondence and found it wanting in terms of providing information and the conclusion here is that Mr Culliton was not providing any information of a protected disclosure in PD 1,2,3 or 4 with the possible exception of those elements of 3 and 4 where they are concerned with about the screening process. Otherwise, he was providing opinions, challenging a process as it applied to him, criticising the investigator and generally trying to at best question and at worst to undermine the process. A process towards which he was negative even before he was interviewed and before there was any change in the terms of reference - based on his expression of shock when informed there was to be such an investigation and his interactions with the investigator at their first meeting all of which are a matter of record.

In relation to PD 3 and 4 above, the Complainant points to his reviewing the screening by RaiseAConcern and their failure to complete one section of that form as a protected disclosure. That statement was certainly information, undoubtedly designed to undermine the investigation and therefore consistent with the previous challenges to the process rather than a disclosure of a protected nature. It was treated as such by the Respondent who had the information assessed by RSM who advised the investigation should proceed. In both emails 3 and 4 the context was questioning the process to which he was objecting. But was there relevant information for the purposes of Section 5 of the Protected Disclosures Act 2014. In light of the direction provided by the Court of Appeal, the question remains whether there was information in PD  3 and/or 4 which fall within the terms of Section 5. 

PROTECTED DISCLOSURES ACT 2014

Protected disclosures

5. (1) For the purposes of this Act “protected disclosure” means, subject to subsection (6) and sections 17 and 18, a disclosure of relevant information (whether before or after the date of the passing of this Act) made by a worker in the manner specified in section 6, 7, 8, 9 or 10.

(2) For the purposes of this Act information is “relevant information” if—

(a) in the reasonable belief of the worker, it tends to show one or more relevant wrongdoings, and

(b) it came to the attention of the worker in connection with the worker’s employment.

(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, or

(h) 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.

(4) For the purposes of subsection (3) it is immaterial whether a relevant wrongdoing occurred, occurs or would occur in the State or elsewhere and whether the law applying to it is that of the State or that of any other country or territory.

(5) A matter is not a relevant wrongdoing if it is a matter which it is the function of the worker or the worker’s employer to detect, investigate or prosecute and does not consist of or involve an act or omission on the part of the employer.

(6) A disclosure of information in respect of which a claim to legal professional privilege could be maintained in legal proceedings is not a protected disclosure if it is made by a person to whom the information was disclosed in the course of obtaining legal advice.

(7) The motivation for making a disclosure is irrelevant to whether or not it is a protected disclosure.

(8) In proceedings involving an issue as to whether a disclosure is a protected disclosure it shall be presumed, until the contrary is proved, that it is.’

Each subsection of Section 5(3) represents extremely serious matters in terms of the damage or type of wrongdoing which the legislation was designed to address by protecting those who made such reports or provided such information to their employer or even higher authorities in some cases. This conclusion is not merely a matter of wording although that is also relevant. There was no offence here. There was no miscarriage of justice arising from a failure to follow their own screening policy in full-that would be a criminal matter.

Gross mismanagement gross negligence have to contain both factors - mismanagement and negligence are not sufficient. The Complainant is well aware that the term gross in the HR field such as gross misconduct is defined by a high bar of serious and obvious offences. Even the Health and Safety clause which was assessed in Rosderra and has been read by some as lowering the bar of ‘information ‘would have necessitated  a report of or related to endangerment. These are not light terms. The legislation was designed to protect and indeed encourage those who had serious wrongdoings as defined to report them and  to expect they would be protected if they came forward and reported those serious wrongdoings and the language chosen to define a wrongdoing defines that level of seriousness.

 I find that the information of an incomplete screening of a protected disclosure which was made by the Complainant in PD 3 and where it is mentioned in PD 4 as a part of a series of questions was not information of a relevant wrongdoing for the purpose of Section 5 of the Act. I cannot see any basis on which the Complainant could have formed a reasonable belief that what he was raising and questioning conformed to the definitions contained in Section 5 of the Act which defines wrongdoing as grossly negligent or gross mismanagement or indeed a miscarriage of justice, other than selecting phrases to support his contention that his were protected disclosures.  At best it was another procedural issue effectively  questioning the original classification of employee Js complaint as a protected disclosure. Whether the employer had the right to screen out a complaint made to the Minister under the legislation might well be a more serious matter for consideration, had it arisen.

In their contention that the four items of correspondence claimed as protected disclosures, the Complainant was raising issues of concern and complaint about an investigation process and not a protected disclosure, the Respondent has discharged the necessary burden of proof to satisfy the terms of Section 5 of the 2014 Act that his were not protected disclosures.

In summary I find that the complaint that protected disclosures were made by Don Culliton on the dates set out in PD  1-4 above is not well founded for the reason that I find the communications referred to do not meet the test of information or relevant information of a wrongdoing for the purposes of Section 5 of the 2014 Act. As there were no protected disclosures the question of penalisation does not arise for consideration.

Notwithstanding my firm conclusion that the Complainant did not make protected disclosures as defined in the 2014 Act, I could not conclude this analysis without commenting on the procedural aspects of the investigation to which Mr Culliton objected. At the hearing I may have used the term ‘wonderment’ or similar to comment briefly on the procedural issues raised by the Complainant in respect of the investigation he tried to change and/or stop. Extraordinary is the kindest descriptor I can find having reviewed and studied this matter in considerable detail both for the hearings and in reviewing all of the material provided in arriving at a Decision. Two elements stand out:

One, changing the status of a witness to a respondent, just like that, and then astonishingly, suggesting that really this change where he became a co-accused was in his own interests. How many people put in the same situation would take a charitable view of this change of status in any proceedings-few if any I suggest.

Two, changing the terms of reference more than halfway through to fundamentally change the nature of the charges to be answered. Those changes were made from using the language of the Protected Disclosures Act/Policy in which the original complaint was grounded to something more akin to a grievance. The goal posts were not just moved-they were flattened.

There were other issues, such as Mazars recording that the terms of reference for a review were agreed-not with the Complainant in this case at any stage.  The deficit in formal communications to the Complainant by the Respondent advising him of the changes in the process on each occasion and the reasoning behind those changes and taking responsibility for them. The Respondent not informing the Complainant that his conduct was being reviewed for a second time, by another third party.

However, it is the first two changes which stand out as every argument which followed stemmed from those two changes.

Spare a thought too for employee J who had two partial findings in his favour from two different independent investigators and both were taken away by the intervention of the governing department who act in the name of the Minister to whom the original disclosure was made. These are not or should not be common occurrences and in the quagmire of protected disclosures which is what employee J’s complaint was treated as from the outset, potentially highly dangerous, especially as this is the very Department where it can be said that it all began. If I were issuing an order in this case, it would require the Department Officials handling employment policy complaints to be grounded fully in the art of fair procedures for which they are accountable, or ought to be.

CA-00053884-001 Protected Disclosures Act,2014.

The complaint by Don Culliton against the Department of Justice under the Protected Disclosure Act 2014, is not well founded.

Protected Disclosure/Time Limits/Burden of Proof-Information in a complaint