Complainant

Respondent

Parties

Padraic  O'Toole

Minister for Agriculture, Food & the Marine

Representatives

Michael Kinsley BL instructed by J.O.S Solicitors

Niall Fahy BL instructed by the Chief State Solicitor’s Office

Act

Complaint Reference No.

Date of Receipt

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

CA-00056225-001

21/04/2023

The Complainant commenced his employment with the Respondent in March 2018. The parties confirmed that the Complainant’s weekly remuneration in respect of his employment calculated in accordance with regulations under section 17 of the Unfair Dismissals Act 1977 was €890.65.

The Complainant referred his complaint to the Director General of the WRC on 21 April 2023 alleging that he was penalised by the Respondent for making two protected disclosures.

Mr Kinsley BL, on behalf of the Complainant, submits as follows.

The Complainant commenced employment with the Respondent in March 2018 as a General Operative. The Complainant was responsible for the day to day running and maintenance of the marina at Rosaveel, County Galway.

In 2019, the Complainant was assigned the role of Marina Superintendent.

In April 2020, the Complainant took up the role of Harbourmaster in an acting up capacity. The Complainant remained in this role for 11 months and, at the Respondent’s request completed a one-year diploma to qualify for the position of Harbourmaster.

A new Harbourmaster, Captain B was appointed in March 2021 and the Complainant returned to his duties as Marina Superintendent.

In February 2022, the Complainant was required to complete daily logs and records at the marina owing to the absence of the Harbourmaster for a period. At this point, the Complainant uncovered discrepancies in the payment of overtime to members of staff at the harbour.

The Complainant brought his concerns regarding the payment of overtime when it was not due, to the Harbourmaster’s (Captain B) attention in February 2022 and was met with an extremely hostile response.

The Complainant also raised other concerns regarding the expenditure of public funds and inappropriate financial arrangements at the harbour to the Harbourmaster’s attention at this time. In particular, the Complainant raised concerns regarding the selling of scrap metal, the property of the Harbour Authority, for significantly below value and the taking of inappropriate payments by the Harbourmaster at the harbour.

In March 2022, the Complainant was asked to attend a meeting and was effectively demoted by the Harbourmaster and the Grade 1 Engineer. The Complainant was informed that he would be relieved of his duties as Marina Superintendent and that he would assume more minor duties. The Complainant was also informed by the Harbourmaster that he would no longer have the same use of a company vehicle that he had theretofore.

In the following period, the Complainant was subjected to a campaign of undermining behaviour by the Harbourmaster in retaliation for the matters raised by the Complainant. This behaviour included the removal of signs from the harbour regarding the Complainant’s role, removal of the Complainant’s details from relevant paperwork, removal of the work vehicle the Complainant was using, undermining the Complainant by not sharing information necessary for the Complainant’s role, such as berthing information, disconnecting the power supply to the Complainant’s place of work and falsely accusing the Complainant of overcharging of customers at the Marina. The Complainant was isolated and undermined by the Harbourmaster.

The Complainant was due to attend a meeting on 23 June 2022 with the Harbourmaster and the Grade 1 Engineer. Initially it was intended both the Harbourmaster and Complainant would attend this meeting as arranged by the Mr Clancy (Chief Engineer), following earlier concerns as raised to him directly by Complainant. However, shortly before the meeting was due to commence, the Mr Clancy informed the Complainant that the Harbourmaster wished for the meeting to be conducted in the Complainant’s absence.

After the said meeting, the Complainant was contacted by Mr Clancy who informed the Complainant that the Harbourmaster had made a number of completely unfounded allegations against the Complainant regarding the collection of charges. The Complainant completely refuted these allegations and informed Mr Clancy that these allegations were being raised in retaliation for the matters that had been raised by the Complainant. The Complainant then itemised the concerns that he had in the workplace and communicated them to Mr Clancy.

Mr Clancy informed the Complainant that the matters raised by him would be investigated fully, however no adequate investigation of the serious concerns raised by the Complainant took place.

The Complainant raised the issue of his mistreatment with the Respondent; however, no adequate investigation was carried out. The Complainant’s solicitor wrote to the Respondent in November 2022 seeking a full investigation of the matters raised by the Complainant. The Complainant’s solicitor again repeated the subject matter of the protected disclosures made by the Complainant and sought assurances that the Complainant would not be subjected to further ill-treatment as a result of having raised concerns.

In reply, the Respondent asserted that an investigation of the matters raised by the Complainant had in fact occurred but refused to furnish the Complainant with details of the said investigation.

The Complainant’s solicitor wrote to the Respondent seeking details of the investigation which the Respondent claimed had taken place and seeking assurances regarding the future treatment of the Complainant.

The Complainant, via his solicitor continued to seek assurances from the Respondent regarding the investigation of the protected disclosures raised by him and assurances regarding his future treatment by the Respondent, in correspondence from January to April 2023, however the Respondent refused to provide such assurances.

The Complainant therefore lodged proceedings in the WRC regarding the penalisation he had been subjected to by the Respondent.

In May 2023, the Complainant was informed that he would no longer be employed in the role of Marina Superintendent and would instead revert to the role of General Operative.

In August 2023, owing to the conduct of the Respondent, the Complainant was forced to resign his employment on 2 August 2023.

Applicable Law

The Protected Disclosures Act 2014 provides protection to employees who make disclosures of relevant information which has come to the employee’s attention in a work-related context. The 2014 Act was subject to significant amendment in January 2023 and it is the amended act which is quoted below. It is submitted on behalf of the Complainant that the penalisation to which he was subjected continued from March 2022 up to the termination of his employment in August 2023.

The concept of “relevant information” is set out at Section 5 as information which, in the reasonable belief of the worker discloses a relevant wrongdoing.

Section 5(3) lists the matters that will be considered “relevant wrongdoings” under the 2014 Act as:

(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 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.

(emphasis added)

Section 3(1) of the Act defines “disclosure” as “in a case in which information disclosed is information of which the person receiving the information is already aware, means bringing to the person’s attention”.

In order to be considered a “protected disclosure” for the purposes of the 2014 Act, the relevant information must be reported in accordance with either Section 6,7,8,9 or 10 of the Act.

Section 6 of the 2014 Act provides for the reporting of relevant information to a worker’s employer.

Section 5(8) of the 2014 Act defines the burden of proof regarding the question of whether a disclosure is a “protected disclosure” for the purposes of the 2014 Act. It states:

“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.”

The test set out in Section 5 is that of “reasonable belief”. It is therefore necessary only for the worker making the disclosure to have held a “reasonable belief” that the information disclosed a relevant wrongdoing. In the UK case of Babula v. Waltham Forest College [2007] EWCA Civ 174 the Court of Appeal held, in interpreting a similar requirement in UK legislation that:

“Provided his belief (which is inevitably subjective) is held by the Tribunal to be objectively reasonable, neither (1) the fact that the belief turns out to be wrong – nor, (2) the fact that the information which the Complainant believed to be true (and may indeed be true) does not in law amount to a criminal offence – is, in my judgement, sufficient, of itself, to render the belief unreasonable and thus deprive the whistleblower of the protection afforded by the statute.”

Section 12 of the 2014 Act 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.”

Section 3 of the 2014 Act defines “penalisation”.

Section 12(7C) of the 2014 Act provides the burden of proof in proceedings under Section 12:

“In any proceedings by an employee under the Workplace Relations Act 2015 in respect of an alleged contravention of subsection (1), the penalisation shall be deemed, for the purposes of this section, to have been as a result of the employee having made a protected disclosure, unless the employer proves that the act or omission concerned was based on duly justified grounds”.

In Aidan & Henrietta McGrath Partnership v. Anna Monaghan PDD 2/2016 the Labour Court issued a determination in which it considered whether the treatment to which the Complainant in that case had been subjected could be attributed to her having made a protected disclosure. In finding for the complainant, the Court outlined the test applicable to whether a complainant has been penalised and whether certain treatment of a worker can be attributed to the making of a protected disclosure.

The Labour Court was of the view that while there may be more than one underlying cause for the treatment to which an employee is subjected, there will be a breach of Section 12 of the 2014 Act where the making of the protected disclosure can be identified as an operative cause. It stated:

“Thus the detriment giving rise to the complaint must have been incurred because of, or in retaliation for, the Complainant having committed a protected act. This suggests that where there is more than one causal factor in the chain of events leading to the detriment complained of the commission of a protected act must be an operative cause in the sense that “but for” the Complainant having committed the protected act he or she would not have suffered the detriment. This involves a consideration of the motive or reasons which influenced the decision maker in imposing the impugned detriment”.

It is submitted that the disclosures made by the Complainant during the course of his employment, are protected disclosures for the purposes of the 2014 Act. It is submitted that the various disclosures made by the Complainant contained “relevant information” and related to “relevant wrongdoings” for the purposes of Section 5.

In Norbrook Laboratories v. Shaw [2014] UKEAT the Employment Appeal Tribunal, upheld a decision of the Employment Tribunal that the raising by an employee of concerns regarding the safety of employees was a matter which fell within Section 43 of the Employment Rights Act, which contains provisions similar to those of the Protected Disclosures Act 2014.

In Norbrook, the Court held that the protected disclosure had been made over the course of several communications by the relevant employee.

It is submitted that the disclosures made by the Complainant concerned the use of public funds and the actions of a public body.

It is submitted that the Complainant made his disclosures in a manner compliant with the requirements of Section 6 of the 2014 Act.

In Baranya v. Rosderra Meats, the Supreme Court made clear that the fact that a complaint amounts to a grievance does not exclude it from being considered a “protected disclosure” for the purposes of the 2014 Act.

It is submitted that the matters raised by the Complainant were protected disclosures for the purposes of the 2014 Act and were made in accordance with the 2014 Act. It is submitted that the Complainant was penalised by the Respondent for having made protected disclosures.

It is submitted that the Respondent’s actions in isolating the Complainant and refusing a reasonable request for transfer, amounted to penalisation contrary to the 2014 Act.

It is submitted that the Respondent’s actions in refusing to properly deal with or investigate the matters raised by the Complainant demonstrate that the Respondent acted in a hostile manner when the Complainant raised protected disclosures.

The Complainant sought to have his employer deal with the matters being raised by him, and the ill-treatment which he endured from 2022 through to his resignation in August 2023, however, no action was taken.

In response to the preliminary matter of time limit raised by the Respondent, Mr Kinsley BL noted that in McDermott which the Respondent relied on there were very defined breaches that happened in sequence. In this case, the matter relates to a protected disclosure and a campaign of penalisation thereafter which took place over a period up until 2023. It was argued that the Respondent cannot assert that once penalisation started long time ago, it could be continued and the Complainant has no case. It was argued that penalisation has been occurring from 2022 and occurred within six-month from the date of the referral of the claim. In the alternative, each incident was a separate incident of penalisation on its own. It was acknowledged that the Adjudication Officer cannot make an award for matters that are outside the six-month time frame, they are, however, entitled to have regard to these matters.

Mr Kinsley BL made an application to extend the time limit to 12 months on the basis of very delayed engagement by the Respondent to have the treatment rectified. It was asserted that this meets the threshold of reasonable cause.

It was further asserted that there is strong public policy to not penalise the Complainant for trying to resolve the matter internally. Mr Kinsley BL asserted that it would be contrary to public policy not to try to engage and resolve the matter internally before referring it to the WRC. Mr Kinsley BL made reference to Hughes v Revenue Commissioners. However, no citation or any details of the judgment were provided.

Concluding  remarks

In his concluding remarks, Mr Kinsley BL said that the Complainant’s communication has all the ingredients of a protected disclosure for which he was penalised. He talked about the overtime issue, thereafter he was relieved from his duties. Mr Kinsley BL asserted that Captain B’s evidence was not credible.

Mr Kinsley BL said that the Respondent’ s case that there was no Marina Superintendent’ role was utterly refuted because of the evidence produced. It was asserted that the role existed and was taken from the Complainant. Mr Clancy never inquired why. The Respondent never, not even after his solicitor’s letter, investigated the Complainant’s claims of penalisation, and nobody ever talked to him about the investigation.

Summary of direct evidence and cross-examination of the Complainant

The Complainant in his direct evidence said that he commenced his employment with the Respondent in March 2018. The Complainant said that the Respondent amalgamated two roles. He was working as Marina Superintendent in the summer and more as a GO in the winter. He was told by the then Harbourmaster that, as there was no separate Marina Superintendent role in the harbour, duties (not all admin) were added to the GO job.

The Complainant said that the then Harbourmaster based the Complainant’s Superintendent role on a set up that was in operation in Dingle harbour as it worked well there. The Complainant said that he had a very good relationship with the then Harbourmaster.

The Complainant said that as the marina got much busier, the then Harbourmaster decided to have a full-time Marina Superintendent. The Complainant was assigned this role during his 2019 Performance Management & Development System (‘PMDS’) meeting. However, he was told to wait to be graded correctly. He referred to his 2019 mid-year review where both himself and the then Harbourmaster referred to his role as Marina Superintendent and the Harbourmaster stated that the Complainant “was assigned the task of Marina Superintendent as a major part of his general harbour duties and he has exceeded expectations in his approach to this challenging position”. The end of year evaluation in December 2021 by the Harbourmaster also states that he “carried out the duties of Small Craft Harbour superintendent to a high standard”.

The Complainant said that following the then Harbourmaster’s retirement, he was approached by the Respondent and asked to act up. The Complainant said that initially he had no interest, but he was told that he might be able to apply for a full-time permanent Harbourmaster position. The Complainant said that a case was made to change the requirements for the position of the Harbourmaster as the Respondent wanted him in the role. The Respondent also paid for him to complete a Line Management course for the Marina Superintendent and then a Harbourmaster Diploma. As initially the request for the Harbourmaster course was refused, a case was made in writing to HR by the then Harbourmaster,  the Grade 1 Engineer and was supported in writing by the Chief Engineer to revisit the refusal.

The Complainant said that Captain B was successful in the Harbourmaster competition and he started in March 2021. Initially they had a good relationship. The Complainant returned to his Superintendent role.

The Complainant said that the Harbourmaster was not on site very often as he lived away so the Complainant took up duties to make it easier for him and to help out.

The Complainant said that in 2021 there was no mention that his duties would have to be changed or that anyone was unhappy with him in the role.

The Complainant said that in January 2022 the relationship was still OK, but all staff talked about variety of issues daily.

The Complainant said that when he was acting as the Harbourmaster he was offered €2k by a vessel owner to scrap a vessel. He said that it would be €37-38k in harbour fees or the alternative was to scrap in Limerick. Either was a massive cost. The Complainant alleged that it was done by the new Harbourmaster who benefited financially from that. The Complainant alleged that the process that is required was not applied in this case.

The Complainant said that in February 2022 the matter of overtime came to his attention. He saw that from Christmas time staff were paid overtime but were not there. The Complainant said that he told the Harbourmaster that he needed to be careful, it was about public money and incompetence.

The Complainant said that he saw in March that the Harbourmaster “was off” with him. He said that the Harbourmaster entered the office, closed the door behind him and told the Complainant that he should not be doing the logs etc. in the future. The Complainant said that he told the Harbourmaster that he was not doing it the right way, that all are talking about fraud. The Harbourmaster asked what he meant, and he listed the scrap, overtime, etc.

The Complainants said that he had never had any dispute at work, so he had great recollection of what happened. He said that he was shocked, this should not happen in a harbour, in public sector.

The Complainant said that it was a busy time of the year, they did not have many interactions but he could see the frostiness between them.

The Complainant said that he got a call on the morning of 27 March 2022 asking him to a meeting with the Harbourmaster and the Grade 1 Engineer. At the meeting, the Complainant was told that there is restructuring, there would no longer be a Marina Superintendent and he would go back to his role as a GO. The Complainant said that he told them that it was in retaliation for the meeting in February, but they denied it. It was agreed at this stage that the Complainant would remain in his role and it would be reviewed in October.

The Complainant said that he was told that he had no use of a vehicle he had to date. It was impossible to do his job with no vehicle. The Harbourmaster continued to undermine him. The signage with his name was removed, his business cards were removed. The Complainant said that the Harbourmaster ordered the business cards for him in May/June 2021. He had nothing to do with ordering of the cards or signage.

The Complainant said that he could not believe what was happening, he was always hardworking. He said that he was out sick on/off since.

The Complainant said that on 2 June 2022 there was an attempt to move the marina office. The Complainant said that he brought to the Harbourmaster’s attention that it was agreed that he will remain in his role until October. He contacted Mr Clancy and told him that he was being targeted. Mr Clancy called him back and said that he told the Harbourmaster not to move the container until 23 June 2022 when a meeting was scheduled. The Complainant said that he was not moved on 2 June, but power was cut in his office and he was moved prior to the meeting on 23 June 2022. He said that the three weeks in June were unbearable.

The Complainant said that Mr Clancy sent a request for a meeting to the Complainant, the Harbourmaster, and the Grade 1 Engineer. The Complainant met Mr Clancy in the canteen on the day in question. He was told that Mr Clancy would first meet with the Harbourmaster. Afterwards, Mr Clancy met the Complainant in the carpark. Mr Clancy told the Complainant that he was blamed for incorrect charges. However, the Complainant said he did not issue any charges. In 2018 it was the then Harbourmaster. He said that these issues were never raised with him before, it was just “tit for tat”.  The Complainant said that the matters that he discussed with Mr Clancy on the phone were again discussed at the carpark. Mr Clancy took notes, asked the Complainant to sign them and said that he would be in touch.

The Complainant said that he contacted HR and was told that the best would be to discuss it between himself and the Harbourmaster. He did that about two weeks after 23 March 2022 but nothing changed. He inquired about a move with Mr Clancy and Mr O’Sullivan, the Assistant Chief Engineer.

The Complainant said that the Harbourmaster tried to undermine him, he was telling people to bypass the marina office and to come to him directly, power was disconnected in the marina office, signage “marina office” was removed. The Complainant said that when he was out, his belongings and PC were removed from the office.

The Complainant said that he went out sick soon afterwards. He returned in October and it was the worst month of his life. He was given the worst jobs in the harbour, he was targeted. He went out sick again.

The Complainant said that he wrote to Mr Clancy on three occasions as he received no information regarding the investigation. He never received any report.

The Complainant said that he was never referred to a Protected Disclosures Policy of the Respondent.

The Complainant said that the Grade 1 Engineer asked him, after the first call to Mr Clancy, what was going on, he was trying to put stop on it, but it was just too far at this stage.

The Complainant referred to a letter dated 12 January 2023 from his solicitor to the Chief Engineer and said that it was a reflection of how he felt, being penalised. The Complainant said that he loved his job but the Respondent was sticking to its guns and once Mr Clancy told him that he was a GO, the Complainant knew that here was no future for him.

The Complainant referred to a letter dated 19 January 2023 from the Respondent that advised him to pursue the matter under the Civil Service Dignity at Work Policy if he believed that he was not afforded a safe place of work, free from bullying and harassment. He said that he went through all the processes.

The Complainant said that he was hoping to get resolution. He knew that the Harbourmaster wanted to move to another location, but senior management were sticking to their guns.

The Complainant said that it affected his wellbeing and his home life, he was under stress, he did not sleep, and it was terrible two years. The Complainant said that he lives locally, people knew that there was an investigation and they thought he did something wrong.

The Complainant referred to the booklets regarding competitions for appointment to the role of a GO from 2023, 2020 and 2017 (the competition he was appointed as a result of) and noted that only 2017 referenced duties relevant to the Marina Superintendent function.

The Complainant also referred to a letter dated 28 January 2020 and signed by the then Harbourmaster and the Chief Engineer requesting the Training and Development Unit to reconsider the rejection of the Complainant’s application for a payment of fees regarding the Diploma for Harbourmasters. The letter stated that the Complainant is employed as a GO and goes to say:

…in this particular case, perhaps GO is not the proper title for the position advertised. Marina Superintendent would be a more appropriate title; Section 2 (Job Specification) and Section 3 (Person Specification) of the information booklet more than demonstrated this. “

“…we were fortunate enough to have acquired a person that fits all the above criteria and has excelled in his role Marina Superintendent. During his 2 years in Rossaveel he has single handed managed the Marina (150 Berths) with minimal supervision.”

The Complainant also presented his business cards that stated his role as “Marina Superintendent”. The Complainant said that when the Harbourmaster took over, he ordered them for the Complainant.  The Complainant email signature stated, “Marina Manager”.

The Complainant further referred to a set up in Dingle on which Rossaveel was based that showed that there was a Superintendent role there.

The Complainant further referred to a Workforce Planning 2021 document issued by the Head Office in Clonakilty which listed the Complainant in the column entitled “Marina Superintendent” and not in the General Operative column.

Similarly, a document signed by the Harbourmaster listing employees authorised to drive the Respondent’s vehicles lists the Complainant as the “Marina Manager”.

The Complainant said that he received an email from the Harbourmaster on 11 October 2022 which was sent to the Complainant’s personal email address regarding alleged outstanding berthing payments for 2020-2022 for the Complainant’s vessel. The Complainant said that the harbour was utilised by him and other employees and prior to October 2022 there was never any charge and there was no indication that he would be charged. The Complainant then received a Final Reminder letter dated 19 Apil 2023 advising that legal proceeding would be initiated for the recovery of the amounts stated.

The Complainant took great offence to the email dated 26 March 2022 from the Harbourmaster to a named official in the Respondent organisation. The Complainant said that the Harbourmaster was trying to blame him for something that was not his error.

The Complainant confirmed that he had engaged with his union and was anxious to resolve the matter internally without the need to go to the WRC. He contacted HR in April 2022 and was told to talk to the Harbourmaster. He met with the Harbourmaster in May. He sought union advice on 25 May 2022 by email and spoke with the union representative who then told him that the union would not represent the Complainant if he engaged solicitors. He said that nobody advised him about time limits. He first contacted his solicitor in the summer of 2022 but formally briefed them in October 2022.

In cross-examination, the Complainant confirmed that he was hired as a GO. He said that, as there was no grade for Superintendent, a GO job was amalgamated with Superintendent one. He did not dispute that the then Harbourmaster could not have sanction a Superintendent post but he said that a person was doing this job during the summer and the then Harbourmaster assigned the Superintendent role to the Complainant in his PMDS review. He said that the Departmental Workforce Planning 2021 document listed him as a Superintendent. The Complainant confirmed that, when he was appointed to the role of Acting Harbourmaster he went through a competition.

It was put to the Complainant that one of the roles of a GO as per the role profile was to supervise the marina. The Complainant replied that this was not in any GO role profile prior or after the competition regarding his role. He acknowledged that the role profile provided for flexibility in the position and the supervisor could assign him duties. The Complainant said that he never refused any duties. The Complainant said it was not for him to answer if a different supervisor could take a different view on duties.

It was put to the Complainant that the fact that he supervised the marina in such a formal way was one of his duties, not a promotion. The Complainant said that he did not know why it was portrayed as a glorious job, it is a lot of cleaning, power washing, a busy job.

The Complainant was asked if he had a Superintendent when he was acting up. He said that he had only one GO, he did three roles himself.

It was put to the Complainant that the Chief Engineer had conversations with him regarding his appointment as a Superintendent. The Complainant said that he only brought it up when the Harbourmaster started to undermine him as it did not bother him up to then, there was no extra pay for the role.

It was put to the Complainant that he was a GO, and he was, from time to time assigned to do a Marina Superintendent role. The Complainant disputed that he said that all he ever did was the Superintendent job until the Harbourmaster had an issue with that.

It was put to the Complainant, and he agreed, that duties ‘a-h’ in the booklet were a GO’s duties. It was put to him that ‘(i)’ in the booklet were duties that “may be allocated”, that Marina Superintendent role could be assigned to him as a GO, and it could be taken away from him but his job title remained a GO. The Complainant said that it changed as it has become so busy that Marina Superintendent became a full-time job. The Complainant said that he did what he was requested to do. It was put to the Complainant that the then Harbourmaster could not have promoted him and the fact that someone signed off on his business card did not give him a promotion.

The Complainant disagreed that he resisted when the Harbourmaster tried to clarify his duties in March 2022. He said that he took up any duties. He said that he had no interest in the Harbourmaster role and when the new Harbourmaster took over, after 6-8 weeks shadowing to assist him, the Complainant returned to his job.

The Complainant denied that there was friction between him and other staff, he said that he would be shocked if they had issues with him as a Superintendent.

The Complainant confirmed that he informed the Harbourmaster that there was an inappropriate overtime applied.

The Complainant confirmed that he had a discussion with the Chief Engineer who took notes and then produced the typed version. The Complainant confirmed it was his signature on the document. It was put to the Complainant that he said that it could possibly be an “error”, that he had no written record of alleging wrongdoing. The Complainant said that he disclosed it in a meeting, not in writing.

It was put to the Complainant that he was not targeted, he was one of the GOs doing the GO job.

The Complainant was asked if Mr Clancy asked him if he would like to go the protected disclosures route. The Complainant said that he put his hands up, he told Mr Clancy that he did not know anything about protected disclosures, what it entailed. He did not say “yes” or “no”, he did not understand protected disclosures.

It was put to the Complainant that Mr Clancy could not treat it as a protected disclosure unless the Complainant asked him to treat it as such. As the Complainant did not do so, Mr Clancy had to use a different route. The Complainant said that he did not know that.

The Complainant agreed that he should not be an active participant in internal disciplinary process. The Complainant confirmed that he disagreed with the outcome of the disciplinary process, but he agreed that it was not a detriment that the investigation did not produce a result he expected. The Complainant said that people that should have been interviewed, were not. He also had to ask for the outcome twice or three times.

Mr Fahy BL, on behalf of the Respondent, submits as follows.

The Respondent denies that the Complainant is entitled to any relief on the grounds that he has not been penalised, he has not suffered any detriment and the majority of the acts of alleged detriment took place prior to any true allegation of wrongdoing.

The Respondent takes its obligations under the Protected Disclosures Act 2014 very seriously and it has a robust policy in place for dealing with protected disclosures. However, the Respondent contends that it has not penalised the Complainant in any way for the making of any protected disclosure.

Factual background, the Complainant’s employment and Circular DPE144/004/2015

The Complainant has been employed by the Respondent as a General Operative (“GO”) in the Marine Engineering Division of the Respondent. Throughout his employment, the Complainant has been based at Rossaveal Fishery Harbour Centre (“RVFHC”). There is no question that the Complainant is a competent employee and throughout his employment with the Respondent he has consistently been a very proactive and effective member of the team.

At the time of the commencement of his employment with the Respondent, his responsibilities were set out in the General Operative Competition Booklet.

Prior to 2021, the former named Harbourmaster (Captain A) was the Complainant’s line manager.

The position of GO is intended to be broad and flexible, with a mix of duties and responsibilities that vary between employees and over time in accordance with the operational needs of the fishery harbour. As appears from the General Operative Competition Booklet, the responsibilities of a GO, such as the Complainant were as follows:-

(a)    Carrying out maintenance and repairs within the Fishery Harbour Centre;

(b)    Carrying out maintenance and repairs to other piers, slipways etc, as directed by the Respondent’s Engineering Division;

(c)     Ensuring the safe keeping of all plant, tools, equipment and materials in the GO’s charge, or in use by others on site within their supervision;

(d)    Co-operating with the Respondent with regard to Safety, Health and Welfare at Work and comply with relevant Health and Safety legislation. Provide, where required, the duties of deputy Designated Person in Charge of Safety for site works;

(e)    Driving vehicles and machinery as required for the performance of harbour duties;

(f)      Ensuring that harbour property, piers and structures are maintained as safe and clean working areas;

(g)    Assisting vessels berthing and landing and servicing vessels when required;

(h)    Assisting in works involving the syncrolifts and boatyard area (where boatyard facilities are provided). This could involve raising and lowering vessels on the syncrolifts platform, movement of vessels in the boatyard area as well as maintenance of the equipment;

(i)      Such other duties, of an appropriate nature, which may be allocated by the Respondent or his or her assistants, such as:-

·       Supervise the Marina i.e. the small craft harbour (operational 7 days per week).

·       Operate close to deep water, across pontoons, boats and on ladders.

·       Supervision and recording vessels arrivals and departures.

·       Collect fees and account for monies.

·       Reporting damages and defects to the Harbourmaster.

·       Cleaning, painting and general maintenance duties throughout the harbour.

·       Shift work as required.

The Complainant agreed to these above terms of employment when he commenced work with the Respondent on or about 9 April 2018.

Until 2021, the Complainant’s duties included management and supervision of a small craft harbour. There was no monetary allowance or other financial benefit associated with the Complainant being assigned these duties. These duties were assigned to the Complainant by the then Harbourmaster during his tenure. As envisaged by the General Operative Competition Booklet a GO’s responsibilities and duties would vary from time to time in accordance with the needs of that GO’s line manager. Prior to 2021, the then Harbourmaster saw fit to assign the Complainant the responsibility of managing the small craft harbour.

The Complainant never enjoyed an entitlement (whether contractual or otherwise) to be given any specific duty. Nor was the Complainant ever informed or lead to believe that any of the responsibilities that were assigned to him at any given time were irrevocably or permanently assigned to him. Contrary to the Complainant’s assertion in his submissions he never was employed as a Marine Superintendent and there is no Marine Superintendent role in RVFHC.

After the then Harbourmaster’s retirement in April 2020, HR held an internal competition to fill the role of Harbourmaster in an “acting” capacity on a temporary basis. The Complainant was successful in this competition. The permanent position was advertised in December 2020 and the Complainant did not satisfy the minimum criteria for the role and so his application was unsuccessful. So, the Complainant served as acting Harbourmaster from April 2020 to March 2021. The Complainant had a successful tenure as Acting Harbourmaster. During his tenure as Acting Harbourmaster, the responsibility of supervising and managing the small craft harbour was retained by the Complainant and was not assigned to any of the other GOs.

A competition was held in order to secure a permanent appointment to the role of Harbourmaster in Rossaveal. Captain B was successful in this competition and he was appointed as Harbourmaster on 8 March 2021.

Upon the appointment of Captain B as permanent Harbourmaster, the Complainant reverted to his position as GO. During this time the Complainant wrongly presented himself as being a Marine Superintendent, including by the placing on a sign to this effect at the hut by the small craft harbour. There is no such role as Marine Superintendent at RVFHC.

The Respondent rejects the Complainant’s claim that he brought any wrongdoing to the attention of Captain B in February 2022. It is telling that this complaint was apparently never committed to writing. Captain B recalls that he and the Complainant had discussed the issue of overtime in February 2022 but it had been a reasonably innocuous conversation. The Complainant simply observed they ought to be careful to keep the levels of overtime low. This was made by way of advice or comment about budgetary concerns and was not a notification of wrongdoing, even in the most informal terms or by implication. There was no allegation made at the time of the improper payment of overtime or the payment of overtime that was not due. Furthermore, the Complainant made no allegation of wrongdoing, whether about scrap metal or inappropriate payments, to Captain B, or anyone else until June 2022 at the earliest.

The Respondent also rejects the Complainant’s claim that Captain B responded with hostility to the discussion of overtime. It was an innocuous conversation and there were no raised voices or disagreements. Captain B was astonished to learn – for the first time in September 2023 – that the Complainant apparently considered his comments in February 2022 to be a protected disclosure or otherwise a disclosure of wrongdoing.

As is to be expected, Captain B had his own operational strategy as regards the assignment of responsibilities among himself and his staff. It is not unusual that he would differ from one of his predecessors in this regard. As Captain B grew into the new role over 2021 it became increasingly clear to him that it was undesirable from a staff harmony perspective that one of the GOs would elevate himself above the rest as regards the assignment of responsibilities. The other GOs remarked to Captain B that the Complainant was unwilling or reluctant perform those parts of his role that he considered more menial. This was creating friction among the staff. Furthermore, the small craft harbour was not busy enough – save at certain times of the year – to require the attention of a dedicated member of staff.

There had been some discussions between the Complainant and Mr Clancy that the Complainant might be given the role of marine superintendent in the future. This was ultimately not pursued. The Complainant is well aware that he was not in fact the Marine Superintendent based on his request that he be assigned this role.

Because of these frictions and operational disadvantages of the Complainant purporting to enjoy an elevated status among the GOs, Captain B resolved to meet with the Complainant in order to clarify to him that he was a GO. It was necessary to explain to him that he was required to perform all of the functions of that role and not simply those which he would like to perform. Captain B wished to have Grade 1 Engineer present because he anticipated that the Complainant might respond negatively. Captain B contacted the Grade 1 Engineer several times in order to set up the meeting and it took several months before the meeting could be scheduled. The timing of the meeting was unrelated to any comments made by the Complainant whether in February 2022 or otherwise, as is wrongly suggested in his submissions. At the meeting it was clarified to the Complainant that he was a GO, not Marine Superintendent and that his wrongly presenting as having as such should cease. He was also informed that he was required to do all the tasks of GO.

Captain B was not punishing the Complainant but simply applying his own operational strategy to the management of the Harbour. The Complainant was not being demoted but rather he was being treated identically to all of the other GOs of which he was one. It is notable that this was the same operational strategy employed by the Complainant when he was Acting Harbourmaster, without any specific GO assigned the role of managing the small craft harbour.

The Complainant was disappointed by the fact that he was not given the sole responsibility of supervising the small craft harbour. This was done for operational reasons and did not have the intention (or effect) of punishing or penalising the Complainant. In any event, the clarification of the Complainant’s duties in March 2022 occurred before any protected disclosure or other complaint and could not have been a penalisation for something which had not yet happened.

On 23 June 2022, the Complainant verbally raised several allegations against Captain B to his line manager. In the course of doing so, the Complainant stated to Mr Clancy, that he wanted to meet with both Mr Clancy and Captain B, in order to go through the issues he raised.

Given the nature of the allegations raised, Mr Clancy considered it was inappropriate to put these allegations to Captain B in such an informal setting as suggested by the Complainant, without ensuring fair procedures were provided to all parties. Consequently, Mr Clancy did not agree to convene a face-to-face meeting with the Complainant and Captain B, but rather asked the Complainant to furnish him with a statement of his allegations. This document was initially prepared by Mr Clancy based on what had been reported to him by the Complainant.

On 5 July 2022, the Complainant signed the statement in which he detailed his allegations which had been prepared as a collaborative effort by him and Mr Clancy. The statement concludes by writing “This represents an accurate record of the issues I discussed with Noel Clancy on the 23rd June 2022.”

At no time did the Complainant use the term “protected disclosure”. Indeed, the Complainant was asked by Mr Clancy if he wished to make a protected disclosure and he declined to formally do so. Because of this, it was treated as an internal disciplinary procedure which is usually confidential. The Civil Service Disciplinary Code (Circular 19/2016) provides as follows at 3.2.10:-

“appropriate confidentiality will be maintained and information will only be disclosed where it is necessary for the investigation of the concern, where it is required by law or for other legitimate reasons.”

Had the Complainant invoked the protected disclosure procedure then then a different policy would have been followed, which includes an appeal process. It would have been inappropriate to invoke this procedure when not expressly requested to by the Complainant and so the only option was to treat it as an internal disciplinary matter.

In his complaint, the Complainant made several allegations against Captain B and the overall management of the harbour. These allegations included the following:-

(a)    The Complainant alleged that overtime was being paid over and above hours worked for weekend work from Christmas 2021 to February 2022. He further alleged that this resulted in a heated discussion with Captain B when the Complainant queried him about it.

(b)    The Complainant alleged that he had refused an approach to permit the breaking-up of a vessel in the harbour in exchange for payment of €2,000 while he was Acting Harbourmaster. He alleged that, by contrast Captain B had accepted such an approach and received a large envelope full of cash. It was also alleged that the owners of the vessel had given the staff a bag of prawns and €100.

(c)     The Complainant also alleged that Captain B had separately received €4,500 - €5,000 in cash for scrap metal that had been cleaned out of the net compound area.

(d)    It was alleged that Captain B did not work his full complement of required hours, was rarely on site and regularly used a harbour vehicle to drop a family member to a school 25 miles away.

(e)    It was alleged that Captain B wished to bring an end to the carpark lease and instead for the cash to be collected directly by harbour staff, enabling them to earn extra money.

(f)      The Complainant wrote to the accounts division to complain that the wrong rates were being charged to fishing vessels being berthed in the SCH. The Complainant alleges that he was blamed for this by Captain B although the issue predated his tenure as acting harbourmaster.

(g)    The Complainant also made allegations of a more general nature that he was treated “disgracefully” over the preceding few months, including meetings being held with no advance notice, agreed matters not being adhered to, changing locks in the office, the requesting of access to the Complainant’s private cabin when he was off sick, the removal of card machines and vehicles bypassing the complainant on work related issues, preventing him from meetings that he had requested and the telling of untruths about how busy the marina was.

The allegations raised by the Complainant were considered by Mr Clancy and by the Head of Human Resources. Mr Clancy considered the allegations to be very serious and – if proven – they would have amounted to a serious violation of the Civil Service Disciplinary Code. For this reason, a decision was made that the allegations raised against Captain B should be formally investigated under the auspices of the Civil Service Disciplinary Code.

The allegations were put to Captain B in the course of an investigation conducted by the then Head of Investigations Division who had also undergone training as an investigator for the purposes of the Civil Service Disciplinary Code. The Investigator also interviewed the Complainant as part of this process.

The Complainant was out of work on certified sick leave from 24 June 2022 until 8 July 2022.

The Complainant’s complaint was processed expeditiously by the Respondent while at the same time ensuring that all fair procedures were adhered to particularly where such serious allegations were being made against Captain B. On 29 September 2022, Mr Clancy wrote to the Complainant to advise him that the investigation had concluded that there was no evidence found to corroborate the details of his allegations as particularised in his signed statement of 5 July 2022.

One aspect of the complaint was upheld against Captain B regarding the allegation of using a work vehicle to bring a relative to school. This was dealt with internally as a verbal warning given the relatively minor nature of this finding.

While the majority of the complaint was not upheld, it is not the purpose of this proceeding to evaluate the credibility of the allegations made by the Complainant.

In March 2023 Mr C took over the role of Harbourmaster of the RVFHC. He has continued the practice of not assigning any specific GO the responsibility to supervise the small craft harbour for operational reasons. These responsibilities have remained subsumed into the overall responsibilities of the Harbourmaster.

The Complainant filed this Complaint on 21 April 2023.

The Complainant was again out of work on certified sick leave from 3 October 2022 to 1 May 2023.

On 17 May 2023 the Complainant spoke to Mr Tony O’Sullivan on the telephone with a view to returning to work. The Complainant was informed that he could return to work as GO. The Complainant was quite eager to resume his former responsibilities related to supervising the small craft harbour but he was informed by Mr O’Sullivan that this was not possible because those responsibilities were no longer assigned to any of the GOs at the present time.

By letter dated 30 May 2023 the Complainant’s solicitor JOS Solicitors wrote to Mr Clancy wrongly suggesting that the Complainant had been removed from full duties and / or removed from the GO role. The said letter requested reinstatement at his “previous position of employment with full duties.” This letter was entirely misconceived. Save for his period as acting Harbourmaster the Complainant had remained as a GO with full duties. The Complainant had not been demoted or removed from his post and the Respondent had continued to provide him with a full complement of duties in accordance with the terms of his employment.

By reply dated 20 June 2023 Mr Clancy wrote to JOS Solicitors disputing the Complainant’s account of a conversation with Mr O’Sullivan and enclosing a copy of the General Operative Competition Booklet which sets out the responsibilities of a GO which have been assigned to the complainant throughout his tenure as GO.

From 2 May 2023 the Complainant was on an unpaid unauthorised absence from work. The Complainant voluntarily resigned his position on 2 August 2023.

Preliminary objection: the complaint is out of time

In HSE v McDermott [2014] IEHC 331 the High Court (Hogan J) considered section 6(4) of the to the Payment of Wages Act 1991 which at that time stated:-

“A rights commissioner shall not entertain a complaint under this section unless it is presented to him within the period of 6 months beginning on the date of the contravention to which the complaint relates or (in a case where the rights commissioner is satisfied that exceptional circumstances prevented the presentation of the complaint within the period aforesaid) such further period not exceeding 6 months as the rights commissioner considers reasonable.”

In his judgment Hogan J stated:-

“We may next observe that the actual language of the subsection is clear, because it is the words "contravention to which the complaint relates" which are critical. It may be accepted that every distinct and separate breach of the 1991 Act amounts to a "contravention" of that Act. If, for example, an employee is paid monthly and the employer makes unlawful deduction X in respect of salary for every month in a two year period it might be said in the abstract that there have been 24 separate "contraventions" of the 1991 Act during that period.

Yet the relevant statutory language takes us somewhat further, because the key question is the "date of the contravention to which the complaint relates." In other words, time runs for the purposes of the Act not from the date of any particular contravention or even the date of the first contravention, but rather from the date of the contravention "to which the complaint relates." As the EAT pointed out in its ruling on the matter, had the Oireachtas intended that time was to run from the date of the first contravention, it could easily have so provided.

For the purposes of this limitation period, everything turns, accordingly, on the manner in which the complaint is framed by the employee. If, for example, the employer has been unlawfully making deductions for a three year period, then provided that the complaint which has been presented relates to a period of six months beginning "on the date of the contravention to which the complaint relates", the complaint will nonetheless be in time. It follows, therefore, that if an employer has been making deduction X from the monthly salary of the employee since January 2010, a complaint which relates to deductions made from January, 2014 onwards and which is presented to the Rights Commissioner in June, 2014 will still be in time for the purposes of s. 6(4). If, on the other hand, the complaint were to have been framed in a different manner, such that it related to the period from January, 2010 onwards, it would then have been out of time. It may be that when enacting s. 6(4) the Oireachtas did not fully appreciate that everything might turn for the purposes of time on the actual manner in which the particular complaint was actually framed by the employee, but the language of the sub-section really admits of no other conclusion. Nor can it be said that such a conclusion is absurd in any way.”

It is important to emphasise that the effect of this decision is not – as is sometimes wrongly argued – that an overbroad complaint is to be confined to alleged breaches within the previous 6 months only. Rather the effect of this decision is that an overbroad complaint is to be entirely excluded, even if it contains allegations within the previous 6 months unless it is solely confined to that period.

Schedule 2 of the 2014 Act provides that complaints of contraventions of section 12 shall be presented to the WRC in accordance with section 41 of the 2015 Act. Section 41(6) of the 2015 Act provides:-

“Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.”

Section 41(8) provides:-

“(8) An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.”

It will be noted that these sub-sections use identical wording to that referred to in McDermott above (“the date of the contravention to which the complaint relates”).

So, in order to consider whether the Complainant’s complaint is out of time, it must be considered what is that date of the contravention to which the complaint relates. The Complaint form is devoid of any detail and little assistance can be obtained therefrom. The allegation of penalisation by the Complainant is encapsulated by paragraph 40 of the written legal submissions:-

“The Respondent’s actions in isolating the Complainant and refusing reasonable request for transfer amounted to penalisation contrary to the 2014 Act”

The temporal scope of this is clarified in paragraph 21:

“the penalisation to which he was subjected continued from March 2022 up to the termination of his employment in August 2023".

At the adjudication hearing Mr Fahy BL noted that the events the Complainant relies upon took place in excess of 12 months prior to the referral of his claim.

Protected Disclosure

The Complainant invokes the Protected Disclosures Act 2014 (“the 2014 Act”).

Section 5(1) of the Act defines a protected disclosure. Section 5(2) defines “relevant information”.

If the complaint were not out of time, the Respondent would accept for the purposes of this complaint only that the Complainant had made a protected disclosure in or about June or July 2023 when he made allegations of wrongdoing to Mr Clancy.

However, the Respondent rejects the Complainant’s apparent contention that he made a protected disclosure in February 2022.

In Garda Commissioner v Barrett [2023] IECA 112 the Court of Appeal has stated that “informational content” is the “sine qua non” of a protected disclosure. In Baranya v Rosderra Fresh Meats [2021] IESC 77 the Supreme Court (Hogan J, giving the judgment of the Court) stated as follows:-

“…did those words expressly or by necessary implication amount to an allegation tending to show that workplace health and safety was or would be endangered, even if that complaint was personal to him. The allegation must, of course, contain such information – however basic, pithy or concise – which, to use the language of s. 5(2) of the 2014 Act, “tends to show one or more relevant wrongdoings” on the part of the employer: to adopt the words of Sales LJ regarding a parallel provision in the corresponding UK legislation, the disclosure must have “sufficient factual content and specificity” for this purpose: see Kilraine v. Wandsworth LBC [2018] ICR 1850 at 1861, even if it does merely by necessary implication.”

Contrary to the Complainant’s contention, he raised no allegation of wrongdoing in his verbal comments of February 2022. It was an innocuous conversation about budgetary constraints.

Regarding penalisation, section 12 of the Act states as follows:-

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

Section 12(3) provides:-

“Schedule 2 shall have effect in relation to an alleged contravention of subsection (1) ”

Section 3 of the 2014 Act defines penalisation.

Schedule 2 provides as follows in relation to the redress for contraventions of section 12.

Detriment

It is necessary for the Complainant to establish that he has suffered some detriment within the meaning of the 2014 Act.

It is clear from cases such as A Psychiatrist v A Health Service Provider (23 September 2019) ADJ-00017774 that there is a common definition of “detriment” in both health and safety penalisation complaints and protected disclosure penalisation complaints. In that case the Adjudication Officer held that the test for detriment was an objective one, citing English caselaw. Therefore, it is incumbent on the Complainant in this case to establish that his treatment would be viewed as detrimental from the perspective of an ordinary reasonable employer and not whether the Complainant subjectively felt that he was subject to detriment.

It is submitted that the assignment of different responsibilities at different times to the Complainant was an ordinary part of his employment as GO. The assignment of some duties in substitution for former duties does not constitute “detriment,” within the meaning of the act. While the Complainant clearly harbours a subjective sense of grievance against what he perceives as his unfair treatment, this is insufficient to establish detriment.

Furthermore, it is submitted that the investigation into the complaints was carried out fairly and properly and as a result the Complainant could not have suffered any detriment in that regard.

Causation

It is necessary for the Complainant to satisfy the “but for test” as set out in Paul O’Neill v Toni and Guy (Blackrock) Limited [2010] 21 ELR 1. While Toni and Guy related to penalisation under Health, Safety and Welfare at Work Act, it is submitted that the same principles apply.

“It is clear from the language of this section that in order to make out a complaint of penalisation it is necessary for a Complainant to establish that the determent of which he or she complains was imposed “for” having committed one of the acts protected by subsection 3. Thus the detriment giving rise to the complaint must have been incurred because of, or in retaliation for, the Complainant having committed a protected act. This suggested that where there is more than one causal factor in the chain of events leading to the detriment complained of the commission of a protected act must be an operative cause in the sense that “but for” the Complainant having committed the protected act he or she would not have suffered the detriment. This involves a consideration of the motive or reasons which influenced the decision maker in imposing the impugned determent.”

It is clear therefore that there must be a causative link between the detriment alleged to have been suffered by a complainant and the protected disclosure made by them. For example, in the WRC decision of Douglas Bel-Maguire v HSE (2023) ADJ-00035530 & ADJ-00040105 the Adjudication Officer states:-

“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.”

While there are differing views on the nature of the test of causation in similar provisions in the UK, it seems that the “but for test” from Toni & Guy remains applicable in Ireland.

It is submitted that the changes to the Complainant’s responsibilities were part of the ordinary changes associated with new management and not caused or brought about by any protected disclosure.

Indeed, much of the grievances aired by the Complainant in his initial complaint relate to matters that arose prior the any true allegation of wrongdoing. It is clearly the case that those acts of alleged detriment which commenced in March 2022 could not have been caused by a protected disclosure that occurred in June or July 2022.

The prior existence of a grievance also undermines the Complainant’s apparent contention that the protected disclosure caused the detriment.

The Complainant was having interpersonal difficulties with Captain B, prior to his complaint of June – July 2022. This is perhaps an understandable result of the resumption of his former role as GO having acted as Harbourmaster. However, the fact of the prior friction between the Complainant and Captain B undermines any contention that the protected disclosure caused his alleged mistreatment. The Complainant was having a difficult time at work in any event, irrespective of any disclosure. It is submitted that this was caused – not by any protected disclosure – but by the Complainant’s difficulty in adjusting to resuming his role as GO.

Burden of Proof

Quite clearly the Complainant has the ordinary burden of establishing that he actually made a disclosure in February 2022, before any presumptions arise. There is no written record of such disclosure, the Respondent denies that he made any disclosure within the meaning of section 5(8) and it is for him to prove that he did, in accordance with the ordinary civil standard.

While there is a presumption in section 5(8) of the 2014 Act that any particular disclosure, once established, is a protected disclosure, there is no such presumption as regards causation or detriment.

It is submitted therefore that, while a disclosure can be presumed to be a protected disclosure until the contrary is proven, the onus is on the Complainant to establish that:-

·       He has suffered detriment;

·       The detriment that he alleges that he suffered was caused by the protected disclosure made by him.

This much is clear from the decision on Garda Commissioner v Barrett [2023] IECA 112. That case related to a different standard of proof at the interlocutory injunction stage, but the Court stated as follows in relation to the burden of proof at trial:-

“However, it is also important to recognize the limits of the presumption. It is confined to the issue of whether a disclosure is a protected disclosure. It does not extend beyond that issue. Therefore, for example, the presumption does not apply to the question of whether there is a connection between a protected disclosure and an alleged detriment i.e. it is not presumed that there is any such connection between them. The connection must be proved by the applicant in the ordinary way, to the relevant standard of proof.”

Conclusion

The Complainant’s complaint is out of time and the WRC has no jurisdiction to entertain it.

In any event, the Complainant made no allegations of wrongdoing to the Respondent until June 2022 at the earliest. The acts of alleged detriment occurred before making of any protected disclosure by the Complainant and were done for operational reasons without the intent or effect of punishing the Complainant. Thereafter the Complainant suffered no detriment and the investigation was carried out fairly and properly.

For all of the above reasons, the Complainant’s complaint ought to be dismissed in its entirety and it follows that he is not entitled to any compensation.

At the adjudication hearing, Mr Fahy BL said that the Respondent does not accept that the issues raised in February 2022 were a protected disclosure. The clarification of the Complainant’s duties was not in a response to a protected disclosure as no disclosure was made. The Respondent accepted that, despite the fact that the Complainant did not want to proceed with the protected disclosure route and therefore waived his rights, that the matters raised in June 2022 amounted to a protected disclosure.

Mr Fahy BL further said that the Complainant’s role was that of a GO. He was assigned from time to time the Marina Superintendent’s role; he was not promoted.

Mr Fahy BL asserted that it would have to be concluded that the Respondent deliberately set out to penalise the Complainant for making a protected disclosure. However, Captain B did not harbour any animosity, he did not set out to punish the Complainant. If it’s found that Mr Clancy failed to implement the Protected Disclosure Policy, it was done innocently but mistakenly, not in retaliation for making a protected disclosure.

Summary of direct evidence and cross-examination of Mr Tony O’Sullivan – Assistant Chief Engineer

Mr O’Sullivan emphasised the significance of the job title “General Operative”. He said that it is a particular grade that is common to many Departments, and it is a very distinctive grade within the civil service.

Mr O’Sullivan said that the Complainant’s job specification (including point (i)) was customised to the harbour GO’s duties. The phrase “may be allocated” emphasises that a GO would be doing this kind of work, it specifically brings marina in to focus which was not the case in previous booklets. Mr O’Sullivan said that work of a GO is varied, there is a variety of duties, but the job remains a GO.

In cross-examination it was put to Mr O’Sullivan that the documents exhibited identified the Complainant as a Marina Superintendent. Mr O’Sullivan did not doubt that those were genuine documents.

It was put to Mr O’Sullivan that while he said that duties could change from day to day, the documents are produced on a daily basis, he agreed.  It was put to the witness that the position of Marina Superintendent was not given on a day-to-day basis, it was held for a period. Mr O’Sullivan said that there was no doubt that the Complainant was hired as a GO but over the years he was assigned duties of the Marina Superintendent.

It was put to the witness that the suggestion that one could come on Wednesday and meet a different Marina Superintendent that they met on Tuesday is incorrect. Mr O’Sullivan said that the role is changeable. He would expect that the Harbourmaster would do it for a good reason.

In redress, Mr O’Sullivan said that there were consultations with the engineers as to whether there was a need for Marina Superintendent role. There was a management meeting at which it was decided that there was no need at this stage, maybe in the future. If this was the case, a business case would have to be made, duties for the grade would have to be established, then a competition for the specific role would have to be held and a successful candidate would be appointed. At the time the grade did not exist.

Summary of direct evidence and cross-examination of Captain B, Harbourmaster

Captain B outlined his career and experience. He said that he became the Harbourmaster in March 2021 in Rossaveel, he then transferred elsewhere. He said that it was the first time he did a 9-5 job, he was getting used to the civil service.

Captain B said that is relationship with the Complainant was fine all along. He said that he initially understood that the Complainant’s role was a Superintendent of the Small Craft Harbour. While the Complainant was referred to as a Marina Superintendent, Captain B said that he kept correcting that. He said that the Complainant managed quite well. As he acted up in the Harbourmaster role, Captain B leaned on him in some respects. There were different processes, terminology, access to the system, so he was getting assistance from the Complainant and others.

With regard to the business cards, Captain B said that when he was asked to get some for himself, he asked the Complainant if he would like some. Captain B had no issue with putting “Marina Superintendent’ on the card, as the Complainant was giving them to the marina users.

Captain B said that the Complainant shared an office with an engineer, he also had an office in the marina.

Captain B said that the Complainant told him that there would be a competition to give him the Superintendent job and Captain B made representations on his behalf but he had no latitude to promote or demote someone.

Captain B said that he asked Dingle Harbourmaster about the matter and was told that there is a GO who also does marina maintenance, there was a similar set up in Castletownbere. There was an engineer, a foreman, one GO, the Complainant and the Harbourmaster. The Complainant was most capable GO to do computer recording etc.

Captain B said that he considers himself a manager of the port, but given the small number of staff, he wouldn’t redesignate people around. He said that in October/ November 2021, one GO made comments in passing about the Complainant’s role. Winter is a busy period and Captain B did not want any friction. In February 2022 another GO joined but one GO was out sick. Captain B said that he spoke with the Grade 1 Engineer about it. The Complainant was to continue in the small craft harbour but they wanted him to do more of what the other GOs did, more application from him around the harbour was needed. Captain B said that he had the impression that the Complainant would not like that. He considered himself a Marina Superintendent and Captain B said that he could not fault him for that.

Regarding the conversation in February 2022, Captain B said that the Complainant told him “you need to be careful what overtime you are putting” because another Harbourmaster had an inquiry. Captain B said that he had no issues with overtime but as it was brough to his attention, he contacted the other Harbourmaster to seek clarity. He denied that there were raised voices during the conversation. He said that he did not understand the Complaint accusing him of anything inappropriate. Captain B said that he had no issue with overtime, it was easy to explain. There was an audit and there were no issues. The Complainant did not refer to metal breaking etc. at the time. He mentioned the scrapped vessel, he said that there were issues with fees (during the previous Harbourmaster’s tenure). Captain B said that he went to the owner and asked what his plan was, that was it.

Captain B said that he had no feelings about this conversation, he took the Complainant’s advice on many things, it was the same with regard to the overtime.

Regarding events in March 2022, Captain B said that the Complainant was asked to take on more GO’s duties, he defended himself, he said that he was in the small craft harbour and did GO’s duties. The Complainant took issue with the use of vehicles. One was assigned to the Harbourmaster, the other to the foreman. The Complainant had an issue with that. The Complainant did not refer to the meeting in February 2022 at this meeting.

Captain B said that the events in March were not to punish the Complainant for a protected disclosure made in February 2022. Captain B denied that. He said that he hadn’t intended to stay in Rossaveel much longer. He was asked to have a conversation with the Complainant before a new Harbourmaster took over. As it happened, Captain B stayed there for another eight months. He said he had no ill will. A new Harbourmaster could come and decide differently.

Captain B said that after March 2022 the relationship soured. He thought that the Complainant stopped going to the canteen, they used to have a coffee and a chat together in the mornings. Captain B said that, to be fair, he probably should have made more effort, he knew the Complainant did not like this. He added that this did not change after the February 2022 meeting but after the March one.

Captain B said that he made a suggestion to the Complainant and the Grade 1 Engineer to meet again in a month to discuss. He went to the Complainant to say that the Grade 1 Engineer would be there but the Complainant said that there was no use talking to him as he had talked to the Chief Engineer.

Captain B said that the first time he heard of the allegations was after he got a letter from HR. The allegations were investigated and he was exonerated except for driving a government vehicle with a non-government person in it. Captain B said he had no concerns as he had nothing to answer.

Captain B said that the investigator investigated him, the Complainant, all paperwork. He said that it was a nerve wrecking experience, it was the first time he was investigated. He said that he did not have any animosity towards the Complainant. He knew that the Complainant was the best to do these duties. He did not want to make life difficult for the new Harbourmaster. He needed the Complainant to be around the harbour. He said that the Complainant did not make a protected disclosure to him and he did not penalise him.

Regarding the wrong rates charged and allegedly blaming the Complainant, Captain B said that his email was a response to an email from one of the accountants. He was informed of an issue, it was investigated, it was not an accusation, it was a mistake.

With regard to the matter of the changed lock and freezing out allegation, Captain B explained that there were 2 keys to the container, the Complainant had one and he had another one. The Complainant once forgot his and took the Harbourmaster’s one. On the day in question, Captain B needed to get to the office to get harbour documents, there was no key, but there was a locksmith on site (one of the contractors) so the lock was changed.

In cross-examination, Captain B agreed that the document referring to the Complainant as the Marina Superintendent were genuine and created by the Respondent. He agreed that the PMDS made a reference to the Marina Superintendent.

Captain B confirmed that he did not have latitude to promote or demote someone. He could designate tasks but not roles. He said that he had no intention to remove the Complainant from the small craft harbour, he was not changing the Complainant’s role. It was discussed that the Complainant had to do his GO role as well. The Complainant’s presence was needed around the harbour. He felt that the Grade 1 Engineer should be present at this conversation. It was put to Captain B that he wanted the Grade 1 Engineer present because he was about to make a significant intervention.

Captain B was not sure why the signage was changed but he believed that the Complainant made the signage himself. He said that the container was in the area that was undergoing work and had to be moved.

Regarding the PMDS, Captain B said that the Complainant could have requested a meeting. If an employee has any issue with what he put on the PMDS, they can come back to him. It was put to the witness that the Complainant’s PMDS was a “glowing report”. If other GOs had issues with him, it was not reflected.

Regarding the meeting on 3 February 2022, Captain B said that the Complaint told hm to be careful how much overtime he put on the overtime sheet and that another Harbour Master was audited. Captain B did not feel that there was any issue or wrongdoing. He took it on board as advice from someone who had been in this position before. He said that he called the other Harbourmaster about something else and inquired about the overtime matter. Captain B did not see the text of 11 February 2022 as an accusation of any wrongdoing. Captain B denied that the March events were in response to the issues raised. Captain B said that he wanted to have the duties clarified and the new Harbourmaster would do what was appropriate for them to run the harbour. He said that he did not treat the Complainant any differently.

Captain B said that some signage was changed at the entrance and that electricity was cut because of engineering works. The Complainant was not deprived a vehicle, he did not have a vehicle, but he could use one of the vehicles from the harbour.

Captain B repeated that him referring to a GO in his email regarding fees was not to undermine the Complainant, he did not make accusations.

Regarding the Complainant’s own vessel fees, Captain B said that he reviewed all the vessels and fees. The Complainant could have rung and said that there was an agreement in place, he did not know that staff were berthing vessels at no charge.

Captain B disputed that the Complainant did not take fees and he said that the Complainant would have issued emails to people whose fees were due, he would take the payment and clerical staff would issue an invoice.

In redress , Captain B said that he assumed the Complainant’s raising the overtime issue was an observation. He also thought that the email of 25 May 2022 was not a complaint of wrongdoing.

Summary of direct evidence and cross-examination of Mr Noel Clancy, Chief Engineer

Mr Clancy outlined his career and experience.

He said that he was telephoned by the Complainant on a Friday afternoon in June 2022. The Complainant wanted to meet to discuss the proposal to move the small craft harbour office. Mr Clancy said that he explained to the Complainant that it was a short notice and he was going on leave. They agreed to defer the issues until 23 June. Mr Clancy said that he knew from the call that there was friction between the Complainant and the Harbourmaster. He expected to discuss a HR dispute and come up with a resolution.

Mr Clancy said that he arrived at the harbour on 23 June 2022 at around 10.30am. He went to meet the Harbourmaster and the Grade 1 Engineer. He wanted to get some sense of what was wrong from the Harbourmaster’s and the area manager’s perspective. He spent approx. 1 hour with them. It was explained to him that the Complainant was upset over how things were in the harbour. He was told that after the March meeting, while the Complainant occupied the role of the Marina Superintendent, they wanted him to operate as a GO in the harbour area but they met with resistance.

Mr Clancy said that his plan was to meet with the Complainant and explain to him that the role, while it existed, it was not a job. He was needed to do the GO job more. He said that he discussed that with the Complainant who said that whatever he would be asked to do around the harbour, he would do it. The Complainant said that he had more to discuss. He went briefly through the allegations which were new to Mr Clancy. Mr Clancy said that he asked for a few minutes, he left the car and rang his superior. He was advised to have the allegations in writing. Mr Clancy confirmed that the typed notes exhibited at the hearing reflected what was in his notes that he took in the car. He sent the notes to the Complainant to have a look in case he missed anything. It was fair recollection of their meeting and the Complainant signed off the notes. Mr Clancy confirmed that the Complainant referred to the overtime matter as a “possible error” that he raised with the Harbourmaster. Mr Clancy said that he had no recollection of the Complainant mentioning a wrongdoing or discussing any previous wrongdoing.

Mr Clancy said that he was shocked. He said that the Respondent runs harbours in trust with the Harbourmasters so any accusations are shocking, he was surprised.

Mr Clancy said that he spoke with his senior manager. At the time he did not consider the matter as a protected disclosure. A decision was made, on advice from HR, to take the disciplinary route. He said that he contacted the Complainant to ask if he wanted to go the protected disclosure route, and the Complainant did not want to do so. The Complainant wanted the Harbourmaster to face up the allegations at a meeting. Mr Clancy said that he felt that the accusations were very serious and merited a proper investigation.

Mr Clancy said that the Internal Investigation Unit are experts in this type of investigations. A unit is appointed by HR, carries out an investigation and reports back to HR, himself and the accused. 

Mr Clancy said that the Complainant’s solicitor’s letter of 23 November 2022 was the first time when a protected disclosure emerged. He said that in his reply he stated that the Complainant was “fully aware” of the investigation. He said that the investigation was carried out under the auspices of the Civil Service Disciplinary Code so the accused and those with specific interest would get the report. He said that he offered mediation in the context of trying to establish a proper working relationship. He said that the request was repeated (a letter dated 12 January 2023) and his reasoning remained the same, the report was confidential. It was put to Mr Clancy that the Complainant alleged that this response in itself is a form of penalisation. Mr Clancy said that it certainly never intended to be penalisation.

In cross-examination, Mr Clancy confirmed that on 23 June 2022 he was told about the prioritisation of the roles. He presumed it was the area manager and the Harbourmaster who decided on that. He did not ask or know why. He presumed it was made for a legitimate reason. He said that he did not know about any previous issues. His understanding was that it was decided for operational reasons. Mr Clancy said that he was not told at the time that the decision to change the Complainant’s duties was put on hold. Mr Clancy said that the Complainant had said at the meeting that he would do whatever he is asked to do.

Mr Clancy was asked if the Complainant’s allegations regarding the treatment he endured which were included in the notes of the meeting of 23 June 2022 were ever investigated. Mr Clancy said that he could not say if they were. It was put to Mr Clancy that the Complainant what the Complainant was saying was that he was penalised. Mr Clancy said that he would not be in a position to know. The Complainant wanted to face the Captain and Mr Clancy left it with HR. Mr Clancy said that the original version of his notes did not include the alleged penalisation part, the Complainant included it afterwards. He said that he did not dispute it then and he would not dispute it now though. He said that the Complainant’s big issue were the accusations made against the Harbourmaster. He said that he made offers of support in his letter to the Complainant’s solicitor.

Mr Clancy confirmed that a colleague in HR asked if the Complainant wanted to proceed with the protected disclosure. Mr Clancy then asked the Complainant who said that he did not. It was put to Mr Clancy that the Complainant probably did not know what a protected disclosure was. Mr Clancy replied that probably no more what he knew at the time. The witness was referred to the Respondent’s Protected Disclosure Policy and Procedure and was asked if the protected disclosure route was not more appropriate. He replied that it was a matter of opinion.

Mr Clean confirmed that he shared the Complainant’s solicitor’s letter of 23 November 2022 with HR but he had no indication as to whether the penalisation alleged in the letter was investigated.

The issue for me to determine is whether the Complainant made a protected disclosure as defined by the Act and whether he was penalised for doing so.  

The Complainant alleges that he suffered persistent and ongoing adverse treatment following the referral of two separate protected disclosures in February 2022 and in June 2022.

In denying these allegations, the Respondent submitted that the matters raised by the Complainant in February 2022 did not constitute a protected disclosure within the meaning of the Act. The Respondent accepted that the matters raised on 23 June 2023 constitute protected disclosure, albeit at the time it was dealt with as a disciplinary matter. However, it was submitted that the Complainant did not suffer any form of adverse treatment of any description in the course of his employment as a result of making the disclosure.

Protected Disclosures Act

The entire Act came into operation on 15 July 2014 (Protected Disclosures Act 2014 (Commencement) Order 2014 (S.I. No. 327 of 2014). The amendments effected by the Protected Disclosures (Amendment) Act 2022 came into operation on 1 January 2023 (S.I. No. 510 of 2022.)

Schedule 7 of the Act, as amended stipulates, inter alia:

‘2.

Subject as provided for therein, section 12 (amended by section 21 of the Act of 2022) and Schedule 2 (amended by section 25 of the Act of 2022) shall apply where a worker within the meaning of section 3 (being that section in the terms as it stood before the commencement of section 4 (a)(iii) of the Act of 2022) who is or was an employee—

(a) made a protected disclosure within the meaning of section 5 (being that section in the terms as it stood before the commencement of section 6 of the Act of 2022) before the date of the passing of the Act of 2022, and

(b) was penalised after the date of the passing of the Act of 2022 for having made such a disclosure.

6.

Subject as provided for therein, section 12 (amended by section 21 of the Act of 2022) and Schedule 2 (amended by section 25 of the Act of 2022) shall apply where—

(a) before the date of the passing of the Act of 2022, a worker within the meaning of section 3 (being that section in the terms as it stood before the commencement of section 4 (a)(iii) of the Act of 2022) who is or was an employee—

(i) made a protected disclosure within the meaning of section 5 (being that section in the terms as it stood before the commencement of section 6 of the Act of 2022), and

(ii) was penalised for having made such a disclosure, and

(b) proceedings under section 12 (amended by section 21 of the Act of 2022) are initiated after the commencement of the said section 21.’

Time limits

The Respondent contended that the judgment in HSE v McDermott [2014] IEHC 331 requires that the Adjudication Officer examine the complaint as framed by the Complainant. The Respondent argued that, having done so, and in line with the judgment in, the Complainant’s claim should be found out of time in its entirety.

The Complainant argued that the WRC has jurisdiction to investigate any alleged penalisation that occurred within six months from the date of the referral of the complaint and, on extension, within 12 months.

It has to be noted that HSE v McDermott addressed cognisable periods in claims under the Payment of Wages Act 1991 not the Protected Disclosures Act. It was a specific judgment regarding a specific piece of legislation which is different in its origin, nature, and intent to the Protected Disclosures Act. There is no payment of wages complaint encompassed in this case. The question in this case is whether there has been a contravention of the Protected Disclosures Act.

The time limits are prescribed by section 41 of the Workplace Relations Act, 2015 as follows:

‘(6) Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.’

Subsection 8 stipulates that:

‘(8) An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.’

It is for the Complainant to establish that there is reasonable cause for the delay in presenting a claim under the Act to the Director General of the WRC. The general principles which apply are that something must be advanced which will both explain and excuse the delay. 

The established test for deciding if an extension of time should be granted for ‘reasonable cause’ is set out in the Labour Court determination in the case of Cementation Skanska (Formerly Kvaerner Cementation) Limited v Carroll DWT0338 and is summarised in Salesforce.com v Alli Leech EDA1615 wherein the Labour Court stated:

‘The established test for deciding if an extension should be granted for reasonable cause shown is that formulated by this Court in Labour Court Determination DWT0338 Cementation Skanska (Formerly Kvaerner Cementation) v Carroll. Here the test was set out in the following terms: -

“It is the Court's view that in considering if reasonable cause exists, it is for the claimant to show that there are reasons which both explain the delay and afford an excuse for the delay. The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd. In the context in which the expression reasonable cause appears in the statute it suggests an objective standard, but it must be applied to the facts and circumstances known to the claimant at the material time. The claimant’s failure to present the claim within the six-month time limit must have been due to the reasonable cause relied upon. Hence there must be a causal link between the circumstances cited and the delay and the claimant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would have initiated the claim in time.”

In that case, and in subsequent cases in which this question arose, the Court adopted an approach analogous to that taken by the Superior Courts in considering whether time should enlarged for ‘good reason’ in judicial review proceedings pursuant to Order 84, Rule 21 of the Rules of the Superior Courts 1986. That approach was held to be correct by the High Court in Minister for Finance v CPSU & Ors [2007] 18 ELR 36.

The test formulated in Cementation Skanska (Formerly Kvaerner Cementation) v Carroll draws heavily on the decision of the High Court in Donal O’Donnell and Catherine O’Donnell v Dun Laoghaire Corporation [1991] ILRM 30. Here Costello J. (as he then was) stated as follows:

“The phrase ‘good reasons’ is one of wide import which it would be futile to attempt to define precisely. However, in considering whether or not there are good reasons for extending the time I think it is clear that the test must be an objective one and the court should not extend the time merely because an aggrieved plaintiff believed that he or she was justified in delaying the institution of proceedings. What the plaintiff has to show (and I think the onus under O. 84 r. 21 is on the plaintiff) is that there are reasons which both explain the delay and afford a justifiable excuse for the delay.”

In Cementation Skanska, the Court further held that:

‘The length of the delay should be taken into account. A short delay may require only a slight explanation whereas a long delay may require more cogent reasons.’

In the more recent matter of Leon Kinsella -v- Anson Friend DWT209, the Labour Court described the test to establish reasonable cause in the following terms:

‘It [is] clear from the authorities that the test places the onus on the applicant for an extension of time to identify the reason for the delay and to establish that the reason relied upon provides a justifiable excuse for the actual delay. Secondly, the onus is on the applicant to establish a causal connection between the reason proffered for the delay and his or her failure to present the complaint in time. Thirdly, the Court must be satisfied, as a matter of probability, that the complaint would have been presented in time were it not for the intervention of the factors relied upon as constituting reasonable cause. It is the actual delay that must be explained and justified. Hence, if the factors relied upon to explain the delay ceased to operate before the complaint was presented, that may undermine a claim that those factors were the actual cause of the delay. Finally, while the established test imposes a relatively low threshold of reasonableness on an applicant, there is some limitation on the range of issues which can be taken into account.”

The Complainant applied for an extension of the time limit in the within case on the basis that the Complainant tried to resolve the matter internally. It was argued that it is a public policy matter not to penalise a complainant for attempting to resolve the matter internally.

In Dublin City Council v Laurence A. Skelly DWT 212 the Labour Court held as follows:

‘This Court has consistently held that a complainant’s decision to delay referring a statutory complaint to the Workplace Relations Commission beyond the six-month time-limit provided for generally in section 41 of the Workplace Relations Act (and in comparable provisions in other individual employment enactments) for the purpose of exhausting an alternative means of resolving their dispute does not constitute reasonable cause for the delay. One such decision in which the Court considered this matter is Business Mobile Security Services Limited T/A Seneca Limited T/A John McEvoy EDA1621. The Complainant/Appellant in that case had sought to apply for an extension of time on the basis that he had attempted to resolve his dispute through the Respondent’s established internal procedures. The Court held that the Complainant had not thereby established reasonable cause for his delay:

“The Court finds that the issues that arose in the course of those meetings were in the nature of industrial relations grievances that contained no indication that a complaint under the Act was either imminent or in contemplation. They amounted to an alternative way of resolving the issues in dispute and did not form part of a procedure that acted as a prelude to commencing a complaint under the Act. Instead the Complainant decided to forego the option of proceeding under the Act and instead chose to try to settle the matters in dispute through other means. When that did not work out to his satisfaction he then sought to rely on his choice to justify the delay in bring proceedings under the Act.’

InTesco Ireland Limited Tesco Express v Ali Raza Khan UDD1965 the Court held:

“Having examined the matter the Court does not accept that the processing of an internal grievance can be considered as a cogent reason which prevented the lodging of a complaint under the Acts in time. The Court is of the view that the Complainant cannot circumvent the time limits set out in the Acts by seeking to rely on an internal procedure that did not prevent him from bringing his complaint within the statutory time limit. The Court addressed this issue in Brothers of Charity Services Galway v Kieran O’Toole[EDA 177] where it held:-

‘The Court cannot accept that deploying the Respondent’s internal procedures operated to prevent the Complainant from initiating the within complaints within the statutory time limit provided under the Acts’.”

In line with the above, I do not accept that the Complainant’s desire to resolve the matter internally constitutes reasonable grounds why it was not presented in time.

I also note that the Complainant’s evidence was that he engaged with his Union representative in or around May 2022. From the email furnished it seems that the Complainant’s concerns related to how to protect his role. The was no indication that the Complainant contemplated a referral to the WRC. The Complainant also consulted with a solicitor firm in the summer or possibly in September 2022. The Complainant’s solicitor told the hearing that they were formally on record in October 2022. I note that, even at that juncture, the correspondence from the Complainant’s solicitor had no indication that the Complainant contemplated a referral of his claim to the WRC, rather it referred to necessary steps “including but not limited to an application to the High Court to protect his constitutional and contractual employment rights.”

Having regard to the foregoing, I find that the Complainant has failed to demonstrate “reasonable cause” as required by the Act. I decide that I would only consider evidence on the allegations of penalisation in the cognisable period, namely from 22 October 2022 to 21 April 2023.

Burden of proof

The 2022 Act amends the burden of proof in penalisation and detriment claims to provide that in any proceedings for penalisation or detriment, it will be deemed that they were as a result a protected disclosure being made, unless the employer or person whom it is alleged to have caused the damage proves that the act or omission concerned was based on ‘duly justified grounds’.

Section 12(7)(C) of the Act provides that:

(7C) In any proceedings by an employee under the Workplace Relations Act 2015 in respect of an alleged contravention of subsection (1), the penalisation shall be deemed, for the purposes of this section, to have been as a result of the employee having made a protected disclosure, unless the employer proves that the act or omission concerned was based on duly justified grounds.

In Aidan & Henrietta McGrath Partnership v Anna Monaghan PDD 2/2016 it was held that:

“The Court must first establish that a protected disclosure has been made before it can examine whether a penalisation within the meaning of the Act has occurred.”

Section 5(1) of the Protected Disclosures Act defines a “protected disclosure” as “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, 7B, 8, 9 or 10.”

Section 5(2) defines “relevant information” as that which, “in the reasonable belief of the worker…tends to show one or more relevant wrongdoing” and “it came to the attention of the worker in a work-related context.”

Section 5(3)(b) provides examples of a “relevant wrongdoing” :

(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.

While the parties disagreed as to whether the matters regarding overtime raised in February 2022 constituted protected disclosure, there was no dispute that the Complainant did make a protected disclosure on 23 June 2022. As, by application of the time limits, the Adjudication Officer is permitted to consider any alleged penalisation in the period from 22 October 2022 to 21 April 2023, it is sufficient to consider the matter in the context of the disclosure made on 23 June 2022.  While the Respondent decided at the time to consider the matter as an internal disciplinary issue, at the adjudication hearing the Respondent accepted that the matters raised by the Complainant on 23 June 2023 constituted protected disclosure.

While I note that in the Complainant did not expressly state that the issues raised on 23 June 2022 constituted protected disclosures, in the matter of Clarke v CGI Food Services Limited & Anor. [2020] IEHC 368, Humphries J. held that,

“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”.

Having regard to the foregoing, I find that the complaints raised by the Complainant on 23 June 2022 constitute protected disclosures within the meaning of the Act.

The next matter to be considered is whether the alleged adverse treatment suffered by the Complainant constitutes “penalisation” for the purposes of the Act.

Section 1 of the Act defines “penalisation” as,

“…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 a 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;

Having regard to the list above, it can be seen that the definition of what may constitute “penalisation” is extremely wide and encompasses almost any form of adverse treatment that leads to a detriment. In addition to the matters above, it is noted that the Section refers to these instances “in particular” and may include other forms of adverse treatment that leads to a detriment.

In this regard, the Complainant has alleged that he was subject to a “campaign of undermining and humiliating behaviour” and “ill-treatment”. The Complainant was asked to particularise the alleged penalisation and the following were detailed:

·       The alleged demotion from the Marina Superintendent role in March 2022;

·       The request to return the Respondent’s vehicle in March 2022;

·       The request to move out of the office at the end of May 2022; 

·       The removal of signage in May/June 2022;

·       The denial to share berthing information in June 2022;

·       The alleged accusations with regards to the charges in May 2022;

·       The second attempt to remove the Complainant from the office in June 2022;

·       The failure to progress his complaint in accordance with the relevant internal procedures;

·       The failure to issue the Complainant with the report of the disciplinary investigation regarding the allegations against Captain B;

·       The request to make payments for the Complainant’s private vessel;

·       The issuing of the memo of 19 April 2023 requesting harbour users not to use the Complainant’s work mobile number for any enquiries regarding the Ros an Mhíl Harbour including the Small Craft Harbour.

As per my finding above regarding the time limits, my decision will address the alleged acts of penalisation in the period from 22 October 2022 to 21 April 2023.

With regard to the Complainant’s assertion that the ongoing  failure to investigate his protected disclosure and failure to share the report of the disciplinary investigation constitutes penalisation, I note that the Complainant in his evidence agreed that as the matter was dealt with as a disciplinary one, he was not entitled to receive the report.

In Department of Agriculture, Food and The Marine  v Andrew Conway PDD197 Mr Conway submitted his claim of penalisation under the Act because he had formed the view that his protected disclosure was being ignored by the Respondent and had not been investigated by it. the Labour Court held that:

‘The Court is not in a position to assess the Complainant’s allegations regarding the degree of seriousness or otherwise the Respondent attached to his protected disclosure or the adequacy of the timeframe within which the Respondent investigated them. Quite simply, these are not matters that fall within the Court’s jurisdiction as provided for in the Act. The combined effect of section 12 and Schedule 2 of the Act, in so far as they relate to the Court’s jurisdiction, is to empower the Court, on hearing an appeal from a decision of an Adjudication Officer under the Act, to determine whether or not there has been a breach of section 12(1) of the Act in the case of the particular complainant before it.’

On appeal, in Andrew Conway v The Department of Agriculture, Food and the Marine [2020] IEHC 664, the appellant submitted that the respondent's conduct in ignoring the appellant's protected disclosure, failing to take it seriously, and failing to investigate it constituted “penalisation” for the purposes of section 3(1) of the 2014 Act. He also submitted that the Labour Court, in interpreting the word “penalisation”, had erred in failing to take account of the respondent's compliance with its obligations pursuant to the 2014 Act, with the relevant Code of Practice set out in S.I. No. 464 of 2015, and with the Department of Public Expenditure's published guidelines.

Hyland J. in dismissing the appeal said that this section required that “the detriment must be of a nature to harm or damage the person making the disclosure”. She understood that the claimant was frustrated and annoyed at the Department's 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 or elsewhere”. 

In paras 82- 85 Hyland J held that the Labour Court has no jurisdiction to evaluate the manner in which a protected disclosure has been treated by an organisation. There is no cause of action under the 2014 Act for failure to investigate a protected disclosure in accordance with an existing policy.

Having considered the above, I find that the Respondent’s failure to investigate the protected disclosure and to furnish the Complainant with the outcome report does not constitute a detriment for the purposes of the Act.

In relation to the memo of 19 April 2023 requesting harbour users not to use the mobile number that was assigned to the Complainant for any enquiries regarding the Ros an Mhíl Harbour including the Small Craft Harbour but rather to contact the Harbourmaster, I find that the memo was issued by Captain B’s successor, Captain C who took over the Harbourmaster role in or around March 2023. At the time of the issuing of the memo, the Complainant had been on sick leave for some 6.5 months. The memo does not make any reference to the Complainant or the Complainant’s role but rather requests that any inquiries be directed to the Harbourmaster. In light of the Complainant’s long term absence, I accept that the decision was made for operational reasons. I cannot find sufficient connection between the issuing of the memo and the protected disclosure made by the Complainant in June 2022.

In relation to the Respondent’s request that the Complainant pays fees for his vessel, the Complainant asserts that the practice was that staff were not charged fees and, indeed, he was never charged previously. He contended that he was singled out in that regard. Captain B gave evidence to the effect that he was not aware of the arrangement and that he reviewed the payments of all staff. I note that the issue of non-payment did not arise in 2021 when Captain B was already in situ. If the staff were required to pay the fees, the Complainant would have been due to pay his winter berth fees for 2020/2021. There was nothing put before me to substantiate Captain B’s statement that the payments or non-payment of fees due of any other staff members were reviewed or applied. I note that, while Captain B initially emailed the Complainant on 11 October 2022 (outside the cognisable period), the invoice was dated 1 December 2022 and the Final Reminder threating the Complainant with the commencement of legal proceedings in the event that he fails to pay the fees by 26 April 2023 was dated 19 April 2023.

Having carefully considered the matter, I find that the Complainant was not required to pay and has not paid any fees from 2018 and the issue was only raised by the Respondent in the end 2022. I therefore conclude that the request to pay the fees was as a result of the Complainant raising a protected disclosure.

The purpose of the 2014 Act is described in its long title as being ‘An Act to make provision for and in connection with the protection of persons from the taking of action against them in respect of the making of certain disclosures in the public interest and for connected purposes.’  Protection for workers in that regard is vital, not only to protect those who speak out, but also to encourage others to come forward when wrongdoing is discovered. The Act is intended to act as a deterrent to employers and others from taking retaliatory action against such workers and this is reflected in the level of compensation that I consider just and equitable having regard to all the circumstances.

I declare this complaint to be well founded. I require the Respondent to pay the Complainant compensation of €25,000 which I consider just and equitable having regard to all the circumstances.

Protected disclosure- penalisation-

Complainant

Respondent

Parties

Padraic  O'Toole

Department Of Agriculture, Food & The Marine

Representatives

Michael Kinsley BL instructed by J.O.S Solicitors

Niall Fahy BL instructed by the Chief State Solicitor’s Office

Act

Complaint Reference No.

Date of Receipt

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

CA-00056225-001

21/04/2023

The Complainant commenced his employment with the Respondent in March 2018. The parties confirmed that the Complainant’s weekly remuneration in respect of his employment calculated in accordance with regulations under section 17 of the Unfair Dismissals Act 1977 was €890.65.

The Complainant referred his complaint to the Director General of the WRC on 21 April 2023 alleging that he was penalised by the Respondent for making two protected disclosures.

Mr Kinsley BL, on behalf of the Complainant, submits as follows.

The Complainant commenced employment with the Respondent in March 2018 as a General Operative. The Complainant was responsible for the day to day running and maintenance of the marina at Rosaveel, County Galway.

In 2019, the Complainant was assigned the role of Marina Superintendent.

In April 2020, the Complainant took up the role of Harbourmaster in an acting up capacity. The Complainant remained in this role for 11 months and, at the Respondent’s request completed a one-year diploma to qualify for the position of Harbourmaster.

A new Harbourmaster, Captain B was appointed in March 2021 and the Complainant returned to his duties as Marina Superintendent.

In February 2022, the Complainant was required to complete daily logs and records at the marina owing to the absence of the Harbourmaster for a period. At this point, the Complainant uncovered discrepancies in the payment of overtime to members of staff at the harbour.

The Complainant brought his concerns regarding the payment of overtime when it was not due, to the Harbourmaster’s (Captain B) attention in February 2022 and was met with an extremely hostile response.

The Complainant also raised other concerns regarding the expenditure of public funds and inappropriate financial arrangements at the harbour to the Harbourmaster’s attention at this time. In particular, the Complainant raised concerns regarding the selling of scrap metal, the property of the Harbour Authority, for significantly below value and the taking of inappropriate payments by the Harbourmaster at the harbour.

In March 2022, the Complainant was asked to attend a meeting and was effectively demoted by the Harbourmaster and the Grade 1 Engineer. The Complainant was informed that he would be relieved of his duties as Marina Superintendent and that he would assume more minor duties. The Complainant was also informed by the Harbourmaster that he would no longer have the same use of a company vehicle that he had theretofore.

In the following period, the Complainant was subjected to a campaign of undermining behaviour by the Harbourmaster in retaliation for the matters raised by the Complainant. This behaviour included the removal of signs from the harbour regarding the Complainant’s role, removal of the Complainant’s details from relevant paperwork, removal of the work vehicle the Complainant was using, undermining the Complainant by not sharing information necessary for the Complainant’s role, such as berthing information, disconnecting the power supply to the Complainant’s place of work and falsely accusing the Complainant of overcharging of customers at the Marina. The Complainant was isolated and undermined by the Harbourmaster.

The Complainant was due to attend a meeting on 23 June 2022 with the Harbourmaster and the Grade 1 Engineer. Initially it was intended both the Harbourmaster and Complainant would attend this meeting as arranged by the Mr Clancy (Chief Engineer), following earlier concerns as raised to him directly by Complainant. However, shortly before the meeting was due to commence, the Mr Clancy informed the Complainant that the Harbourmaster wished for the meeting to be conducted in the Complainant’s absence.

After the said meeting, the Complainant was contacted by Mr Clancy who informed the Complainant that the Harbourmaster had made a number of completely unfounded allegations against the Complainant regarding the collection of charges. The Complainant completely refuted these allegations and informed Mr Clancy that these allegations were being raised in retaliation for the matters that had been raised by the Complainant. The Complainant then itemised the concerns that he had in the workplace and communicated them to Mr Clancy.

Mr Clancy informed the Complainant that the matters raised by him would be investigated fully, however no adequate investigation of the serious concerns raised by the Complainant took place.

The Complainant raised the issue of his mistreatment with the Respondent; however, no adequate investigation was carried out. The Complainant’s solicitor wrote to the Respondent in November 2022 seeking a full investigation of the matters raised by the Complainant. The Complainant’s solicitor again repeated the subject matter of the protected disclosures made by the Complainant and sought assurances that the Complainant would not be subjected to further ill-treatment as a result of having raised concerns.

In reply, the Respondent asserted that an investigation of the matters raised by the Complainant had in fact occurred but refused to furnish the Complainant with details of the said investigation.

The Complainant’s solicitor wrote to the Respondent seeking details of the investigation which the Respondent claimed had taken place and seeking assurances regarding the future treatment of the Complainant.

The Complainant, via his solicitor continued to seek assurances from the Respondent regarding the investigation of the protected disclosures raised by him and assurances regarding his future treatment by the Respondent, in correspondence from January to April 2023, however the Respondent refused to provide such assurances.

The Complainant therefore lodged proceedings in the WRC regarding the penalisation he had been subjected to by the Respondent.

In May 2023, the Complainant was informed that he would no longer be employed in the role of Marina Superintendent and would instead revert to the role of General Operative.

In August 2023, owing to the conduct of the Respondent, the Complainant was forced to resign his employment on 2 August 2023.

Applicable Law

The Protected Disclosures Act 2014 provides protection to employees who make disclosures of relevant information which has come to the employee’s attention in a work-related context. The 2014 Act was subject to significant amendment in January 2023 and it is the amended act which is quoted below. It is submitted on behalf of the Complainant that the penalisation to which he was subjected continued from March 2022 up to the termination of his employment in August 2023.

The concept of “relevant information” is set out at Section 5 as information which, in the reasonable belief of the worker discloses a relevant wrongdoing.

Section 5(3) lists the matters that will be considered “relevant wrongdoings” under the 2014 Act as:

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

(k)    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,

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

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

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

(o)    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

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

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

(r)     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.

(emphasis added)

Section 3(1) of the Act defines “disclosure” as “in a case in which information disclosed is information of which the person receiving the information is already aware, means bringing to the person’s attention”.

In order to be considered a “protected disclosure” for the purposes of the 2014 Act, the relevant information must be reported in accordance with either Section 6,7,8,9 or 10 of the Act.

Section 6 of the 2014 Act provides for the reporting of relevant information to a worker’s employer.

Section 5(8) of the 2014 Act defines the burden of proof regarding the question of whether a disclosure is a “protected disclosure” for the purposes of the 2014 Act. It states:

“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.”

The test set out in Section 5 is that of “reasonable belief”. It is therefore necessary only for the worker making the disclosure to have held a “reasonable belief” that the information disclosed a relevant wrongdoing. In the UK case of Babula v. Waltham Forest College [2007] EWCA Civ 174 the Court of Appeal held, in interpreting a similar requirement in UK legislation that:

“Provided his belief (which is inevitably subjective) is held by the Tribunal to be objectively reasonable, neither (1) the fact that the belief turns out to be wrong – nor, (2) the fact that the information which the Complainant believed to be true (and may indeed be true) does not in law amount to a criminal offence – is, in my judgement, sufficient, of itself, to render the belief unreasonable and thus deprive the whistleblower of the protection afforded by the statute.”

Section 12 of the 2014 Act 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.”

Section 3 of the 2014 Act defines “penalisation”.

Section 12(7C) of the 2014 Act provides the burden of proof in proceedings under Section 12:

“In any proceedings by an employee under the Workplace Relations Act 2015 in respect of an alleged contravention of subsection (1), the penalisation shall be deemed, for the purposes of this section, to have been as a result of the employee having made a protected disclosure, unless the employer proves that the act or omission concerned was based on duly justified grounds”.

In Aidan & Henrietta McGrath Partnership v. Anna Monaghan PDD 2/2016 the Labour Court issued a determination in which it considered whether the treatment to which the Complainant in that case had been subjected could be attributed to her having made a protected disclosure. In finding for the complainant, the Court outlined the test applicable to whether a complainant has been penalised and whether certain treatment of a worker can be attributed to the making of a protected disclosure.

The Labour Court was of the view that while there may be more than one underlying cause for the treatment to which an employee is subjected, there will be a breach of Section 12 of the 2014 Act where the making of the protected disclosure can be identified as an operative cause. It stated:

“Thus the detriment giving rise to the complaint must have been incurred because of, or in retaliation for, the Complainant having committed a protected act. This suggests that where there is more than one causal factor in the chain of events leading to the detriment complained of the commission of a protected act must be an operative cause in the sense that “but for” the Complainant having committed the protected act he or she would not have suffered the detriment. This involves a consideration of the motive or reasons which influenced the decision maker in imposing the impugned detriment”.

It is submitted that the disclosures made by the Complainant during the course of his employment, are protected disclosures for the purposes of the 2014 Act. It is submitted that the various disclosures made by the Complainant contained “relevant information” and related to “relevant wrongdoings” for the purposes of Section 5.

In Norbrook Laboratories v. Shaw [2014] UKEAT the Employment Appeal Tribunal, upheld a decision of the Employment Tribunal that the raising by an employee of concerns regarding the safety of employees was a matter which fell within Section 43 of the Employment Rights Act, which contains provisions similar to those of the Protected Disclosures Act 2014.

In Norbrook, the Court held that the protected disclosure had been made over the course of several communications by the relevant employee.

It is submitted that the disclosures made by the Complainant concerned the use of public funds and the actions of a public body.

It is submitted that the Complainant made his disclosures in a manner compliant with the requirements of Section 6 of the 2014 Act.

In Baranya v. Rosderra Meats, the Supreme Court made clear that the fact that a complaint amounts to a grievance does not exclude it from being considered a “protected disclosure” for the purposes of the 2014 Act.

It is submitted that the matters raised by the Complainant were protected disclosures for the purposes of the 2014 Act and were made in accordance with the 2014 Act. It is submitted that the Complainant was penalised by the Respondent for having made protected disclosures.

It is submitted that the Respondent’s actions in isolating the Complainant and refusing a reasonable request for transfer, amounted to penalisation contrary to the 2014 Act.

It is submitted that the Respondent’s actions in refusing to properly deal with or investigate the matters raised by the Complainant demonstrate that the Respondent acted in a hostile manner when the Complainant raised protected disclosures.

The Complainant sought to have his employer deal with the matters being raised by him, and the ill-treatment which he endured from 2022 through to his resignation in August 2023, however, no action was taken.

In response to the preliminary matter of time limit raised by the Respondent, Mr Kinsley BL noted that in McDermott which the Respondent relied on there were very defined breaches that happened in sequence. In this case, the matter relates to a protected disclosure and a campaign of penalisation thereafter which took place over a period up until 2023. It was argued that the Respondent cannot assert that once penalisation started long time ago, it could be continued and the Complainant has no case. It was argued that penalisation has been occurring from 2022 and occurred within six-month from the date of the referral of the claim. In the alternative, each incident was a separate incident of penalisation on its own. It was acknowledged that the Adjudication Officer cannot make an award for matters that are outside the six-month time frame, they are, however, entitled to have regard to these matters.

Mr Kinsley BL made an application to extend the time limit to 12 months on the basis of very delayed engagement by the Respondent to have the treatment rectified. It was asserted that this meets the threshold of reasonable cause.

It was further asserted that there is strong public policy to not penalise the Complainant for trying to resolve the matter internally. Mr Kinsley BL asserted that it would be contrary to public policy not to try to engage and resolve the matter internally before referring it to the WRC. Mr Kinsley BL made reference to Hughes v Revenue Commissioners. However, no citation or any details of the judgment were provided.

Concluding  remarks

In his concluding remarks, Mr Kinsley BL said that the Complainant’s communication has all the ingredients of a protected disclosure for which he was penalised. He talked about the overtime issue, thereafter he was relieved from his duties. Mr Kinsley BL asserted that Captain B’s evidence was not credible.

Mr Kinsley BL said that the Respondent’ s case that there was no Marina Superintendent’ role was utterly refuted because of the evidence produced. It was asserted that the role existed and was taken from the Complainant. Mr Clancy never inquired why. The Respondent never, not even after his solicitor’s letter, investigated the Complainant’s claims of penalisation, and nobody ever talked to him about the investigation.

Summary of direct evidence and cross-examination of the Complainant

The Complainant in his direct evidence said that he commenced his employment with the Respondent in March 2018. The Complainant said that the Respondent amalgamated two roles. He was working as Marina Superintendent in the summer and more as a GO in the winter. He was told by the then Harbourmaster that, as there was no separate Marina Superintendent role in the harbour, duties (not all admin) were added to the GO job.

The Complainant said that the then Harbourmaster based the Complainant’s Superintendent role on a set up that was in operation in Dingle harbour as it worked well there. The Complainant said that he had a very good relationship with the then Harbourmaster.

The Complainant said that as the marina got much busier, the then Harbourmaster decided to have a full-time Marina Superintendent. The Complainant was assigned this role during his 2019 Performance Management & Development System (‘PMDS’) meeting. However, he was told to wait to be graded correctly. He referred to his 2019 mid-year review where both himself and the then Harbourmaster referred to his role as Marina Superintendent and the Harbourmaster stated that the Complainant “was assigned the task of Marina Superintendent as a major part of his general harbour duties and he has exceeded expectations in his approach to this challenging position”. The end of year evaluation in December 2021 by the Harbourmaster also states that he “carried out the duties of Small Craft Harbour superintendent to a high standard”.

The Complainant said that following the then Harbourmaster’s retirement, he was approached by the Respondent and asked to act up. The Complainant said that initially he had no interest, but he was told that he might be able to apply for a full-time permanent Harbourmaster position. The Complainant said that a case was made to change the requirements for the position of the Harbourmaster as the Respondent wanted him in the role. The Respondent also paid for him to complete a Line Management course for the Marina Superintendent and then a Harbourmaster Diploma. As initially the request for the Harbourmaster course was refused, a case was made in writing to HR by the then Harbourmaster,  the Grade 1 Engineer and was supported in writing by the Chief Engineer to revisit the refusal.

The Complainant said that Captain B was successful in the Harbourmaster competition and he started in March 2021. Initially they had a good relationship. The Complainant returned to his Superintendent role.

The Complainant said that the Harbourmaster was not on site very often as he lived away so the Complainant took up duties to make it easier for him and to help out.

The Complainant said that in 2021 there was no mention that his duties would have to be changed or that anyone was unhappy with him in the role.

The Complainant said that in January 2022 the relationship was still OK, but all staff talked about variety of issues daily.

The Complainant said that when he was acting as the Harbourmaster he was offered €2k by a vessel owner to scrap a vessel. He said that it would be €37-38k in harbour fees or the alternative was to scrap in Limerick. Either was a massive cost. The Complainant alleged that it was done by the new Harbourmaster who benefited financially from that. The Complainant alleged that the process that is required was not applied in this case.

The Complainant said that in February 2022 the matter of overtime came to his attention. He saw that from Christmas time staff were paid overtime but were not there. The Complainant said that he told the Harbourmaster that he needed to be careful, it was about public money and incompetence.

The Complainant said that he saw in March that the Harbourmaster “was off” with him. He said that the Harbourmaster entered the office, closed the door behind him and told the Complainant that he should not be doing the logs etc. in the future. The Complainant said that he told the Harbourmaster that he was not doing it the right way, that all are talking about fraud. The Harbourmaster asked what he meant, and he listed the scrap, overtime, etc.

The Complainants said that he had never had any dispute at work, so he had great recollection of what happened. He said that he was shocked, this should not happen in a harbour, in public sector.

The Complainant said that it was a busy time of the year, they did not have many interactions but he could see the frostiness between them.

The Complainant said that he got a call on the morning of 27 March 2022 asking him to a meeting with the Harbourmaster and the Grade 1 Engineer. At the meeting, the Complainant was told that there is restructuring, there would no longer be a Marina Superintendent and he would go back to his role as a GO. The Complainant said that he told them that it was in retaliation for the meeting in February, but they denied it. It was agreed at this stage that the Complainant would remain in his role and it would be reviewed in October.

The Complainant said that he was told that he had no use of a vehicle he had to date. It was impossible to do his job with no vehicle. The Harbourmaster continued to undermine him. The signage with his name was removed, his business cards were removed. The Complainant said that the Harbourmaster ordered the business cards for him in May/June 2021. He had nothing to do with ordering of the cards or signage.

The Complainant said that he could not believe what was happening, he was always hardworking. He said that he was out sick on/off since.

The Complainant said that on 2 June 2022 there was an attempt to move the marina office. The Complainant said that he brought to the Harbourmaster’s attention that it was agreed that he will remain in his role until October. He contacted Mr Clancy and told him that he was being targeted. Mr Clancy called him back and said that he told the Harbourmaster not to move the container until 23 June 2022 when a meeting was scheduled. The Complainant said that he was not moved on 2 June, but power was cut in his office and he was moved prior to the meeting on 23 June 2022. He said that the three weeks in June were unbearable.

The Complainant said that Mr Clancy sent a request for a meeting to the Complainant, the Harbourmaster, and the Grade 1 Engineer. The Complainant met Mr Clancy in the canteen on the day in question. He was told that Mr Clancy would first meet with the Harbourmaster. Afterwards, Mr Clancy met the Complainant in the carpark. Mr Clancy told the Complainant that he was blamed for incorrect charges. However, the Complainant said he did not issue any charges. In 2018 it was the then Harbourmaster. He said that these issues were never raised with him before, it was just “tit for tat”.  The Complainant said that the matters that he discussed with Mr Clancy on the phone were again discussed at the carpark. Mr Clancy took notes, asked the Complainant to sign them and said that he would be in touch.

The Complainant said that he contacted HR and was told that the best would be to discuss it between himself and the Harbourmaster. He did that about two weeks after 23 March 2022 but nothing changed. He inquired about a move with Mr Clancy and Mr O’Sullivan, the Assistant Chief Engineer.

The Complainant said that the Harbourmaster tried to undermine him, he was telling people to bypass the marina office and to come to him directly, power was disconnected in the marina office, signage “marina office” was removed. The Complainant said that when he was out, his belongings and PC were removed from the office.

The Complainant said that he went out sick soon afterwards. He returned in October and it was the worst month of his life. He was given the worst jobs in the harbour, he was targeted. He went out sick again.

The Complainant said that he wrote to Mr Clancy on three occasions as he received no information regarding the investigation. He never received any report.

The Complainant said that he was never referred to a Protected Disclosures Policy of the Respondent.

The Complainant said that the Grade 1 Engineer asked him, after the first call to Mr Clancy, what was going on, he was trying to put stop on it, but it was just too far at this stage.

The Complainant referred to a letter dated 12 January 2023 from his solicitor to the Chief Engineer and said that it was a reflection of how he felt, being penalised. The Complainant said that he loved his job but the Respondent was sticking to its guns and once Mr Clancy told him that he was a GO, the Complainant knew that here was no future for him.

The Complainant referred to a letter dated 19 January 2023 from the Respondent that advised him to pursue the matter under the Civil Service Dignity at Work Policy if he believed that he was not afforded a safe place of work, free from bullying and harassment. He said that he went through all the processes.

The Complainant said that he was hoping to get resolution. He knew that the Harbourmaster wanted to move to another location, but senior management were sticking to their guns.

The Complainant said that it affected his wellbeing and his home life, he was under stress, he did not sleep, and it was terrible two years. The Complainant said that he lives locally, people knew that there was an investigation and they thought he did something wrong.

The Complainant referred to the booklets regarding competitions for appointment to the role of a GO from 2023, 2020 and 2017 (the competition he was appointed as a result of) and noted that only 2017 referenced duties relevant to the Marina Superintendent function.

The Complainant also referred to a letter dated 28 January 2020 and signed by the then Harbourmaster and the Chief Engineer requesting the Training and Development Unit to reconsider the rejection of the Complainant’s application for a payment of fees regarding the Diploma for Harbourmasters. The letter stated that the Complainant is employed as a GO and goes to say:

…in this particular case, perhaps GO is not the proper title for the position advertised. Marina Superintendent would be a more appropriate title; Section 2 (Job Specification) and Section 3 (Person Specification) of the information booklet more than demonstrated this. “

“…we were fortunate enough to have acquired a person that fits all the above criteria and has excelled in his role Marina Superintendent. During his 2 years in Rossaveel he has single handed managed the Marina (150 Berths) with minimal supervision.”

The Complainant also presented his business cards that stated his role as “Marina Superintendent”. The Complainant said that when the Harbourmaster took over, he ordered them for the Complainant.  The Complainant email signature stated, “Marina Manager”.

The Complainant further referred to a set up in Dingle on which Rossaveel was based that showed that there was a Superintendent role there.

The Complainant further referred to a Workforce Planning 2021 document issued by the Head Office in Clonakilty which listed the Complainant in the column entitled “Marina Superintendent” and not in the General Operative column.

Similarly, a document signed by the Harbourmaster listing employees authorised to drive the Respondent’s vehicles lists the Complainant as the “Marina Manager”.

The Complainant said that he received an email from the Harbourmaster on 11 October 2022 which was sent to the Complainant’s personal email address regarding alleged outstanding berthing payments for 2020-2022 for the Complainant’s vessel. The Complainant said that the harbour was utilised by him and other employees and prior to October 2022 there was never any charge and there was no indication that he would be charged. The Complainant then received a Final Reminder letter dated 19 Apil 2023 advising that legal proceeding would be initiated for the recovery of the amounts stated.

The Complainant took great offence to the email dated 26 March 2022 from the Harbourmaster to a named official in the Respondent organisation. The Complainant said that the Harbourmaster was trying to blame him for something that was not his error.

The Complainant confirmed that he had engaged with his union and was anxious to resolve the matter internally without the need to go to the WRC. He contacted HR in April 2022 and was told to talk to the Harbourmaster. He met with the Harbourmaster in May. He sought union advice on 25 May 2022 by email and spoke with the union representative who then told him that the union would not represent the Complainant if he engaged solicitors. He said that nobody advised him about time limits. He first contacted his solicitor in the summer of 2022 but formally briefed them in October 2022.

In cross-examination, the Complainant confirmed that he was hired as a GO. He said that, as there was no grade for Superintendent, a GO job was amalgamated with Superintendent one. He did not dispute that the then Harbourmaster could not have sanction a Superintendent post but he said that a person was doing this job during the summer and the then Harbourmaster assigned the Superintendent role to the Complainant in his PMDS review. He said that the Departmental Workforce Planning 2021 document listed him as a Superintendent. The Complainant confirmed that, when he was appointed to the role of Acting Harbourmaster he went through a competition.

It was put to the Complainant that one of the roles of a GO as per the role profile was to supervise the marina. The Complainant replied that this was not in any GO role profile prior or after the competition regarding his role. He acknowledged that the role profile provided for flexibility in the position and the supervisor could assign him duties. The Complainant said that he never refused any duties. The Complainant said it was not for him to answer if a different supervisor could take a different view on duties.

It was put to the Complainant that the fact that he supervised the marina in such a formal way was one of his duties, not a promotion. The Complainant said that he did not know why it was portrayed as a glorious job, it is a lot of cleaning, power washing, a busy job.

The Complainant was asked if he had a Superintendent when he was acting up. He said that he had only one GO, he did three roles himself.

It was put to the Complainant that the Chief Engineer had conversations with him regarding his appointment as a Superintendent. The Complainant said that he only brought it up when the Harbourmaster started to undermine him as it did not bother him up to then, there was no extra pay for the role.

It was put to the Complainant that he was a GO, and he was, from time to time assigned to do a Marina Superintendent role. The Complainant disputed that he said that all he ever did was the Superintendent job until the Harbourmaster had an issue with that.

It was put to the Complainant, and he agreed, that duties ‘a-h’ in the booklet were a GO’s duties. It was put to him that ‘(i)’ in the booklet were duties that “may be allocated”, that Marina Superintendent role could be assigned to him as a GO, and it could be taken away from him but his job title remained a GO. The Complainant said that it changed as it has become so busy that Marina Superintendent became a full-time job. The Complainant said that he did what he was requested to do. It was put to the Complainant that the then Harbourmaster could not have promoted him and the fact that someone signed off on his business card did not give him a promotion.

The Complainant disagreed that he resisted when the Harbourmaster tried to clarify his duties in March 2022. He said that he took up any duties. He said that he had no interest in the Harbourmaster role and when the new Harbourmaster took over, after 6-8 weeks shadowing to assist him, the Complainant returned to his job.

The Complainant denied that there was friction between him and other staff, he said that he would be shocked if they had issues with him as a Superintendent.

The Complainant confirmed that he informed the Harbourmaster that there was an inappropriate overtime applied.

The Complainant confirmed that he had a discussion with the Chief Engineer who took notes and then produced the typed version. The Complainant confirmed it was his signature on the document. It was put to the Complainant that he said that it could possibly be an “error”, that he had no written record of alleging wrongdoing. The Complainant said that he disclosed it in a meeting, not in writing.

It was put to the Complainant that he was not targeted, he was one of the GOs doing the GO job.

The Complainant was asked if Mr Clancy asked him if he would like to go the protected disclosures route. The Complainant said that he put his hands up, he told Mr Clancy that he did not know anything about protected disclosures, what it entailed. He did not say “yes” or “no”, he did not understand protected disclosures.

It was put to the Complainant that Mr Clancy could not treat it as a protected disclosure unless the Complainant asked him to treat it as such. As the Complainant did not do so, Mr Clancy had to use a different route. The Complainant said that he did not know that.

The Complainant agreed that he should not be an active participant in internal disciplinary process. The Complainant confirmed that he disagreed with the outcome of the disciplinary process, but he agreed that it was not a detriment that the investigation did not produce a result he expected. The Complainant said that people that should have been interviewed, were not. He also had to ask for the outcome twice or three times.

Mr Fahy BL, on behalf of the Respondent, submits as follows.

The Respondent denies that the Complainant is entitled to any relief on the grounds that he has not been penalised, he has not suffered any detriment and the majority of the acts of alleged detriment took place prior to any true allegation of wrongdoing.

The Respondent takes its obligations under the Protected Disclosures Act 2014 very seriously and it has a robust policy in place for dealing with protected disclosures. However, the Respondent contends that it has not penalised the Complainant in any way for the making of any protected disclosure.

Factual background, the Complainant’s employment and Circular DPE144/004/2015

The Complainant has been employed by the Respondent as a General Operative (“GO”) in the Marine Engineering Division of the Respondent. Throughout his employment, the Complainant has been based at Rossaveal Fishery Harbour Centre (“RVFHC”). There is no question that the Complainant is a competent employee and throughout his employment with the Respondent he has consistently been a very proactive and effective member of the team.

At the time of the commencement of his employment with the Respondent, his responsibilities were set out in the General Operative Competition Booklet.

Prior to 2021, the former named Harbourmaster (Captain A) was the Complainant’s line manager.

The position of GO is intended to be broad and flexible, with a mix of duties and responsibilities that vary between employees and over time in accordance with the operational needs of the fishery harbour. As appears from the General Operative Competition Booklet, the responsibilities of a GO, such as the Complainant were as follows:-

(j)      Carrying out maintenance and repairs within the Fishery Harbour Centre;

(k)     Carrying out maintenance and repairs to other piers, slipways etc, as directed by the Respondent’s Engineering Division;

(l)      Ensuring the safe keeping of all plant, tools, equipment and materials in the GO’s charge, or in use by others on site within their supervision;

(m)  Co-operating with the Respondent with regard to Safety, Health and Welfare at Work and comply with relevant Health and Safety legislation. Provide, where required, the duties of deputy Designated Person in Charge of Safety for site works;

(n)    Driving vehicles and machinery as required for the performance of harbour duties;

(o)    Ensuring that harbour property, piers and structures are maintained as safe and clean working areas;

(p)    Assisting vessels berthing and landing and servicing vessels when required;

(q)    Assisting in works involving the syncrolifts and boatyard area (where boatyard facilities are provided). This could involve raising and lowering vessels on the syncrolifts platform, movement of vessels in the boatyard area as well as maintenance of the equipment;

(r)     Such other duties, of an appropriate nature, which may be allocated by the Respondent or his or her assistants, such as:-

·       Supervise the Marina i.e. the small craft harbour (operational 7 days per week).

·       Operate close to deep water, across pontoons, boats and on ladders.

·       Supervision and recording vessels arrivals and departures.

·       Collect fees and account for monies.

·       Reporting damages and defects to the Harbourmaster.

·       Cleaning, painting and general maintenance duties throughout the harbour.

·       Shift work as required.

The Complainant agreed to these above terms of employment when he commenced work with the Respondent on or about 9 April 2018.

Until 2021, the Complainant’s duties included management and supervision of a small craft harbour. There was no monetary allowance or other financial benefit associated with the Complainant being assigned these duties. These duties were assigned to the Complainant by the then Harbourmaster during his tenure. As envisaged by the General Operative Competition Booklet a GO’s responsibilities and duties would vary from time to time in accordance with the needs of that GO’s line manager. Prior to 2021, the then Harbourmaster saw fit to assign the Complainant the responsibility of managing the small craft harbour.

The Complainant never enjoyed an entitlement (whether contractual or otherwise) to be given any specific duty. Nor was the Complainant ever informed or lead to believe that any of the responsibilities that were assigned to him at any given time were irrevocably or permanently assigned to him. Contrary to the Complainant’s assertion in his submissions he never was employed as a Marine Superintendent and there is no Marine Superintendent role in RVFHC.

After the then Harbourmaster’s retirement in April 2020, HR held an internal competition to fill the role of Harbourmaster in an “acting” capacity on a temporary basis. The Complainant was successful in this competition. The permanent position was advertised in December 2020 and the Complainant did not satisfy the minimum criteria for the role and so his application was unsuccessful. So, the Complainant served as acting Harbourmaster from April 2020 to March 2021. The Complainant had a successful tenure as Acting Harbourmaster. During his tenure as Acting Harbourmaster, the responsibility of supervising and managing the small craft harbour was retained by the Complainant and was not assigned to any of the other GOs.

A competition was held in order to secure a permanent appointment to the role of Harbourmaster in Rossaveal. Captain B was successful in this competition and he was appointed as Harbourmaster on 8 March 2021.

Upon the appointment of Captain B as permanent Harbourmaster, the Complainant reverted to his position as GO. During this time the Complainant wrongly presented himself as being a Marine Superintendent, including by the placing on a sign to this effect at the hut by the small craft harbour. There is no such role as Marine Superintendent at RVFHC.

The Respondent rejects the Complainant’s claim that he brought any wrongdoing to the attention of Captain B in February 2022. It is telling that this complaint was apparently never committed to writing. Captain B recalls that he and the Complainant had discussed the issue of overtime in February 2022 but it had been a reasonably innocuous conversation. The Complainant simply observed they ought to be careful to keep the levels of overtime low. This was made by way of advice or comment about budgetary concerns and was not a notification of wrongdoing, even in the most informal terms or by implication. There was no allegation made at the time of the improper payment of overtime or the payment of overtime that was not due. Furthermore, the Complainant made no allegation of wrongdoing, whether about scrap metal or inappropriate payments, to Captain B, or anyone else until June 2022 at the earliest.

The Respondent also rejects the Complainant’s claim that Captain B responded with hostility to the discussion of overtime. It was an innocuous conversation and there were no raised voices or disagreements. Captain B was astonished to learn – for the first time in September 2023 – that the Complainant apparently considered his comments in February 2022 to be a protected disclosure or otherwise a disclosure of wrongdoing.

As is to be expected, Captain B had his own operational strategy as regards the assignment of responsibilities among himself and his staff. It is not unusual that he would differ from one of his predecessors in this regard. As Captain B grew into the new role over 2021 it became increasingly clear to him that it was undesirable from a staff harmony perspective that one of the GOs would elevate himself above the rest as regards the assignment of responsibilities. The other GOs remarked to Captain B that the Complainant was unwilling or reluctant perform those parts of his role that he considered more menial. This was creating friction among the staff. Furthermore, the small craft harbour was not busy enough – save at certain times of the year – to require the attention of a dedicated member of staff.

There had been some discussions between the Complainant and Mr Clancy that the Complainant might be given the role of marine superintendent in the future. This was ultimately not pursued. The Complainant is well aware that he was not in fact the Marine Superintendent based on his request that he be assigned this role.

Because of these frictions and operational disadvantages of the Complainant purporting to enjoy an elevated status among the GOs, Captain B resolved to meet with the Complainant in order to clarify to him that he was a GO. It was necessary to explain to him that he was required to perform all of the functions of that role and not simply those which he would like to perform. Captain B wished to have Grade 1 Engineer present because he anticipated that the Complainant might respond negatively. Captain B contacted the Grade 1 Engineer several times in order to set up the meeting and it took several months before the meeting could be scheduled. The timing of the meeting was unrelated to any comments made by the Complainant whether in February 2022 or otherwise, as is wrongly suggested in his submissions. At the meeting it was clarified to the Complainant that he was a GO, not Marine Superintendent and that his wrongly presenting as having as such should cease. He was also informed that he was required to do all the tasks of GO.

Captain B was not punishing the Complainant but simply applying his own operational strategy to the management of the Harbour. The Complainant was not being demoted but rather he was being treated identically to all of the other GOs of which he was one. It is notable that this was the same operational strategy employed by the Complainant when he was Acting Harbourmaster, without any specific GO assigned the role of managing the small craft harbour.

The Complainant was disappointed by the fact that he was not given the sole responsibility of supervising the small craft harbour. This was done for operational reasons and did not have the intention (or effect) of punishing or penalising the Complainant. In any event, the clarification of the Complainant’s duties in March 2022 occurred before any protected disclosure or other complaint and could not have been a penalisation for something which had not yet happened.

On 23 June 2022, the Complainant verbally raised several allegations against Captain B to his line manager. In the course of doing so, the Complainant stated to Mr Clancy, that he wanted to meet with both Mr Clancy and Captain B, in order to go through the issues he raised.

Given the nature of the allegations raised, Mr Clancy considered it was inappropriate to put these allegations to Captain B in such an informal setting as suggested by the Complainant, without ensuring fair procedures were provided to all parties. Consequently, Mr Clancy did not agree to convene a face-to-face meeting with the Complainant and Captain B, but rather asked the Complainant to furnish him with a statement of his allegations. This document was initially prepared by Mr Clancy based on what had been reported to him by the Complainant.

On 5 July 2022, the Complainant signed the statement in which he detailed his allegations which had been prepared as a collaborative effort by him and Mr Clancy. The statement concludes by writing “This represents an accurate record of the issues I discussed with Noel Clancy on the 23rd June 2022.”

At no time did the Complainant use the term “protected disclosure”. Indeed, the Complainant was asked by Mr Clancy if he wished to make a protected disclosure and he declined to formally do so. Because of this, it was treated as an internal disciplinary procedure which is usually confidential. The Civil Service Disciplinary Code (Circular 19/2016) provides as follows at 3.2.10:-

“appropriate confidentiality will be maintained and information will only be disclosed where it is necessary for the investigation of the concern, where it is required by law or for other legitimate reasons.”

Had the Complainant invoked the protected disclosure procedure then then a different policy would have been followed, which includes an appeal process. It would have been inappropriate to invoke this procedure when not expressly requested to by the Complainant and so the only option was to treat it as an internal disciplinary matter.

In his complaint, the Complainant made several allegations against Captain B and the overall management of the harbour. These allegations included the following:-

(h)    The Complainant alleged that overtime was being paid over and above hours worked for weekend work from Christmas 2021 to February 2022. He further alleged that this resulted in a heated discussion with Captain B when the Complainant queried him about it.

(i)      The Complainant alleged that he had refused an approach to permit the breaking-up of a vessel in the harbour in exchange for payment of €2,000 while he was Acting Harbourmaster. He alleged that, by contrast Captain B had accepted such an approach and received a large envelope full of cash. It was also alleged that the owners of the vessel had given the staff a bag of prawns and €100.

(j)      The Complainant also alleged that Captain B had separately received €4,500 - €5,000 in cash for scrap metal that had been cleaned out of the net compound area.

(k)     It was alleged that Captain B did not work his full complement of required hours, was rarely on site and regularly used a harbour vehicle to drop a family member to a school 25 miles away.

(l)      It was alleged that Captain B wished to bring an end to the carpark lease and instead for the cash to be collected directly by harbour staff, enabling them to earn extra money.

(m)  The Complainant wrote to the accounts division to complain that the wrong rates were being charged to fishing vessels being berthed in the SCH. The Complainant alleges that he was blamed for this by Captain B although the issue predated his tenure as acting harbourmaster.

(n)    The Complainant also made allegations of a more general nature that he was treated “disgracefully” over the preceding few months, including meetings being held with no advance notice, agreed matters not being adhered to, changing locks in the office, the requesting of access to the Complainant’s private cabin when he was off sick, the removal of card machines and vehicles bypassing the complainant on work related issues, preventing him from meetings that he had requested and the telling of untruths about how busy the marina was.

The allegations raised by the Complainant were considered by Mr Clancy and by the Head of Human Resources. Mr Clancy considered the allegations to be very serious and – if proven – they would have amounted to a serious violation of the Civil Service Disciplinary Code. For this reason, a decision was made that the allegations raised against Captain B should be formally investigated under the auspices of the Civil Service Disciplinary Code.

The allegations were put to Captain B in the course of an investigation conducted by the then Head of Investigations Division who had also undergone training as an investigator for the purposes of the Civil Service Disciplinary Code. The Investigator also interviewed the Complainant as part of this process.

The Complainant was out of work on certified sick leave from 24 June 2022 until 8 July 2022.

The Complainant’s complaint was processed expeditiously by the Respondent while at the same time ensuring that all fair procedures were adhered to particularly where such serious allegations were being made against Captain B. On 29 September 2022, Mr Clancy wrote to the Complainant to advise him that the investigation had concluded that there was no evidence found to corroborate the details of his allegations as particularised in his signed statement of 5 July 2022.

One aspect of the complaint was upheld against Captain B regarding the allegation of using a work vehicle to bring a relative to school. This was dealt with internally as a verbal warning given the relatively minor nature of this finding.

While the majority of the complaint was not upheld, it is not the purpose of this proceeding to evaluate the credibility of the allegations made by the Complainant.

In March 2023 Mr C took over the role of Harbourmaster of the RVFHC. He has continued the practice of not assigning any specific GO the responsibility to supervise the small craft harbour for operational reasons. These responsibilities have remained subsumed into the overall responsibilities of the Harbourmaster.

The Complainant filed this Complaint on 21 April 2023.

The Complainant was again out of work on certified sick leave from 3 October 2022 to 1 May 2023.

On 17 May 2023 the Complainant spoke to Mr Tony O’Sullivan on the telephone with a view to returning to work. The Complainant was informed that he could return to work as GO. The Complainant was quite eager to resume his former responsibilities related to supervising the small craft harbour but he was informed by Mr O’Sullivan that this was not possible because those responsibilities were no longer assigned to any of the GOs at the present time.

By letter dated 30 May 2023 the Complainant’s solicitor JOS Solicitors wrote to Mr Clancy wrongly suggesting that the Complainant had been removed from full duties and / or removed from the GO role. The said letter requested reinstatement at his “previous position of employment with full duties.” This letter was entirely misconceived. Save for his period as acting Harbourmaster the Complainant had remained as a GO with full duties. The Complainant had not been demoted or removed from his post and the Respondent had continued to provide him with a full complement of duties in accordance with the terms of his employment.

By reply dated 20 June 2023 Mr Clancy wrote to JOS Solicitors disputing the Complainant’s account of a conversation with Mr O’Sullivan and enclosing a copy of the General Operative Competition Booklet which sets out the responsibilities of a GO which have been assigned to the complainant throughout his tenure as GO.

From 2 May 2023 the Complainant was on an unpaid unauthorised absence from work. The Complainant voluntarily resigned his position on 2 August 2023.

Preliminary objection: the complaint is out of time

In HSE v McDermott [2014] IEHC 331 the High Court (Hogan J) considered section 6(4) of the to the Payment of Wages Act 1991 which at that time stated:-

“A rights commissioner shall not entertain a complaint under this section unless it is presented to him within the period of 6 months beginning on the date of the contravention to which the complaint relates or (in a case where the rights commissioner is satisfied that exceptional circumstances prevented the presentation of the complaint within the period aforesaid) such further period not exceeding 6 months as the rights commissioner considers reasonable.”

In his judgment Hogan J stated:-

“We may next observe that the actual language of the subsection is clear, because it is the words "contravention to which the complaint relates" which are critical. It may be accepted that every distinct and separate breach of the 1991 Act amounts to a "contravention" of that Act. If, for example, an employee is paid monthly and the employer makes unlawful deduction X in respect of salary for every month in a two year period it might be said in the abstract that there have been 24 separate "contraventions" of the 1991 Act during that period.

Yet the relevant statutory language takes us somewhat further, because the key question is the "date of the contravention to which the complaint relates." In other words, time runs for the purposes of the Act not from the date of any particular contravention or even the date of the first contravention, but rather from the date of the contravention "to which the complaint relates." As the EAT pointed out in its ruling on the matter, had the Oireachtas intended that time was to run from the date of the first contravention, it could easily have so provided.

For the purposes of this limitation period, everything turns, accordingly, on the manner in which the complaint is framed by the employee. If, for example, the employer has been unlawfully making deductions for a three year period, then provided that the complaint which has been presented relates to a period of six months beginning "on the date of the contravention to which the complaint relates", the complaint will nonetheless be in time. It follows, therefore, that if an employer has been making deduction X from the monthly salary of the employee since January 2010, a complaint which relates to deductions made from January, 2014 onwards and which is presented to the Rights Commissioner in June, 2014 will still be in time for the purposes of s. 6(4). If, on the other hand, the complaint were to have been framed in a different manner, such that it related to the period from January, 2010 onwards, it would then have been out of time. It may be that when enacting s. 6(4) the Oireachtas did not fully appreciate that everything might turn for the purposes of time on the actual manner in which the particular complaint was actually framed by the employee, but the language of the sub-section really admits of no other conclusion. Nor can it be said that such a conclusion is absurd in any way.”

It is important to emphasise that the effect of this decision is not – as is sometimes wrongly argued – that an overbroad complaint is to be confined to alleged breaches within the previous 6 months only. Rather the effect of this decision is that an overbroad complaint is to be entirely excluded, even if it contains allegations within the previous 6 months unless it is solely confined to that period.

Schedule 2 of the 2014 Act provides that complaints of contraventions of section 12 shall be presented to the WRC in accordance with section 41 of the 2015 Act. Section 41(6) of the 2015 Act provides:-

“Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.”

Section 41(8) provides:-

“(8) An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.”

It will be noted that these sub-sections use identical wording to that referred to in McDermott above (“the date of the contravention to which the complaint relates”).

So, in order to consider whether the Complainant’s complaint is out of time, it must be considered what is that date of the contravention to which the complaint relates. The Complaint form is devoid of any detail and little assistance can be obtained therefrom. The allegation of penalisation by the Complainant is encapsulated by paragraph 40 of the written legal submissions:-

“The Respondent’s actions in isolating the Complainant and refusing reasonable request for transfer amounted to penalisation contrary to the 2014 Act”

The temporal scope of this is clarified in paragraph 21:

“the penalisation to which he was subjected continued from March 2022 up to the termination of his employment in August 2023".

At the adjudication hearing Mr Fahy BL noted that the events the Complainant relies upon took place in excess of 12 months prior to the referral of his claim.

Protected Disclosure

The Complainant invokes the Protected Disclosures Act 2014 (“the 2014 Act”).

Section 5(1) of the Act defines a protected disclosure. Section 5(2) defines “relevant information”.

If the complaint were not out of time, the Respondent would accept for the purposes of this complaint only that the Complainant had made a protected disclosure in or about June or July 2023 when he made allegations of wrongdoing to Mr Clancy.

However, the Respondent rejects the Complainant’s apparent contention that he made a protected disclosure in February 2022.

In Garda Commissioner v Barrett [2023] IECA 112 the Court of Appeal has stated that “informational content” is the “sine qua non” of a protected disclosure. In Baranya v Rosderra Fresh Meats [2021] IESC 77 the Supreme Court (Hogan J, giving the judgment of the Court) stated as follows:-

“…did those words expressly or by necessary implication amount to an allegation tending to show that workplace health and safety was or would be endangered, even if that complaint was personal to him. The allegation must, of course, contain such information – however basic, pithy or concise – which, to use the language of s. 5(2) of the 2014 Act, “tends to show one or more relevant wrongdoings” on the part of the employer: to adopt the words of Sales LJ regarding a parallel provision in the corresponding UK legislation, the disclosure must have “sufficient factual content and specificity” for this purpose: see Kilraine v. Wandsworth LBC [2018] ICR 1850 at 1861, even if it does merely by necessary implication.”

Contrary to the Complainant’s contention, he raised no allegation of wrongdoing in his verbal comments of February 2022. It was an innocuous conversation about budgetary constraints.

Regarding penalisation, section 12 of the Act states as follows:-

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

Section 12(3) provides:-

“Schedule 2 shall have effect in relation to an alleged contravention of subsection (1) ”

Section 3 of the 2014 Act defines penalisation.

Schedule 2 provides as follows in relation to the redress for contraventions of section 12.

Detriment

It is necessary for the Complainant to establish that he has suffered some detriment within the meaning of the 2014 Act.

It is clear from cases such as A Psychiatrist v A Health Service Provider (23 September 2019) ADJ-00017774 that there is a common definition of “detriment” in both health and safety penalisation complaints and protected disclosure penalisation complaints. In that case the Adjudication Officer held that the test for detriment was an objective one, citing English caselaw. Therefore, it is incumbent on the Complainant in this case to establish that his treatment would be viewed as detrimental from the perspective of an ordinary reasonable employer and not whether the Complainant subjectively felt that he was subject to detriment.

It is submitted that the assignment of different responsibilities at different times to the Complainant was an ordinary part of his employment as GO. The assignment of some duties in substitution for former duties does not constitute “detriment,” within the meaning of the act. While the Complainant clearly harbours a subjective sense of grievance against what he perceives as his unfair treatment, this is insufficient to establish detriment.

Furthermore, it is submitted that the investigation into the complaints was carried out fairly and properly and as a result the Complainant could not have suffered any detriment in that regard.

Causation

It is necessary for the Complainant to satisfy the “but for test” as set out in Paul O’Neill v Toni and Guy (Blackrock) Limited [2010] 21 ELR 1. While Toni and Guy related to penalisation under Health, Safety and Welfare at Work Act, it is submitted that the same principles apply.

“It is clear from the language of this section that in order to make out a complaint of penalisation it is necessary for a Complainant to establish that the determent of which he or she complains was imposed “for” having committed one of the acts protected by subsection 3. Thus the detriment giving rise to the complaint must have been incurred because of, or in retaliation for, the Complainant having committed a protected act. This suggested that where there is more than one causal factor in the chain of events leading to the detriment complained of the commission of a protected act must be an operative cause in the sense that “but for” the Complainant having committed the protected act he or she would not have suffered the detriment. This involves a consideration of the motive or reasons which influenced the decision maker in imposing the impugned determent.”

It is clear therefore that there must be a causative link between the detriment alleged to have been suffered by a complainant and the protected disclosure made by them. For example, in the WRC decision of Douglas Bel-Maguire v HSE (2023) ADJ-00035530 & ADJ-00040105 the Adjudication Officer states:-

“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.”

While there are differing views on the nature of the test of causation in similar provisions in the UK, it seems that the “but for test” from Toni & Guy remains applicable in Ireland.

It is submitted that the changes to the Complainant’s responsibilities were part of the ordinary changes associated with new management and not caused or brought about by any protected disclosure.

Indeed, much of the grievances aired by the Complainant in his initial complaint relate to matters that arose prior the any true allegation of wrongdoing. It is clearly the case that those acts of alleged detriment which commenced in March 2022 could not have been caused by a protected disclosure that occurred in June or July 2022.

The prior existence of a grievance also undermines the Complainant’s apparent contention that the protected disclosure caused the detriment.

The Complainant was having interpersonal difficulties with Captain B, prior to his complaint of June – July 2022. This is perhaps an understandable result of the resumption of his former role as GO having acted as Harbourmaster. However, the fact of the prior friction between the Complainant and Captain B undermines any contention that the protected disclosure caused his alleged mistreatment. The Complainant was having a difficult time at work in any event, irrespective of any disclosure. It is submitted that this was caused – not by any protected disclosure – but by the Complainant’s difficulty in adjusting to resuming his role as GO.

Burden of Proof

Quite clearly the Complainant has the ordinary burden of establishing that he actually made a disclosure in February 2022, before any presumptions arise. There is no written record of such disclosure, the Respondent denies that he made any disclosure within the meaning of section 5(8) and it is for him to prove that he did, in accordance with the ordinary civil standard.

While there is a presumption in section 5(8) of the 2014 Act that any particular disclosure, once established, is a protected disclosure, there is no such presumption as regards causation or detriment.

It is submitted therefore that, while a disclosure can be presumed to be a protected disclosure until the contrary is proven, the onus is on the Complainant to establish that:-

·       He has suffered detriment;

·       The detriment that he alleges that he suffered was caused by the protected disclosure made by him.

This much is clear from the decision on Garda Commissioner v Barrett [2023] IECA 112. That case related to a different standard of proof at the interlocutory injunction stage, but the Court stated as follows in relation to the burden of proof at trial:-

“However, it is also important to recognize the limits of the presumption. It is confined to the issue of whether a disclosure is a protected disclosure. It does not extend beyond that issue. Therefore, for example, the presumption does not apply to the question of whether there is a connection between a protected disclosure and an alleged detriment i.e. it is not presumed that there is any such connection between them. The connection must be proved by the applicant in the ordinary way, to the relevant standard of proof.”

Conclusion

The Complainant’s complaint is out of time and the WRC has no jurisdiction to entertain it.

In any event, the Complainant made no allegations of wrongdoing to the Respondent until June 2022 at the earliest. The acts of alleged detriment occurred before making of any protected disclosure by the Complainant and were done for operational reasons without the intent or effect of punishing the Complainant. Thereafter the Complainant suffered no detriment and the investigation was carried out fairly and properly.

For all of the above reasons, the Complainant’s complaint ought to be dismissed in its entirety and it follows that he is not entitled to any compensation.

At the adjudication hearing, Mr Fahy BL said that the Respondent does not accept that the issues raised in February 2022 were a protected disclosure. The clarification of the Complainant’s duties was not in a response to a protected disclosure as no disclosure was made. The Respondent accepted that, despite the fact that the Complainant did not want to proceed with the protected disclosure route and therefore waived his rights, that the matters raised in June 2022 amounted to a protected disclosure.

Mr Fahy BL further said that the Complainant’s role was that of a GO. He was assigned from time to time the Marina Superintendent’s role; he was not promoted.

Mr Fahy BL asserted that it would have to be concluded that the Respondent deliberately set out to penalise the Complainant for making a protected disclosure. However, Captain B did not harbour any animosity, he did not set out to punish the Complainant. If it’s found that Mr Clancy failed to implement the Protected Disclosure Policy, it was done innocently but mistakenly, not in retaliation for making a protected disclosure.

Summary of direct evidence and cross-examination of Mr Tony O’Sullivan – Assistant Chief Engineer

Mr O’Sullivan emphasised the significance of the job title “General Operative”. He said that it is a particular grade that is common to many Departments, and it is a very distinctive grade within the civil service.

Mr O’Sullivan said that the Complainant’s job specification (including point (i)) was customised to the harbour GO’s duties. The phrase “may be allocated” emphasises that a GO would be doing this kind of work, it specifically brings marina in to focus which was not the case in previous booklets. Mr O’Sullivan said that work of a GO is varied, there is a variety of duties, but the job remains a GO.

In cross-examination it was put to Mr O’Sullivan that the documents exhibited identified the Complainant as a Marina Superintendent. Mr O’Sullivan did not doubt that those were genuine documents.

It was put to Mr O’Sullivan that while he said that duties could change from day to day, the documents are produced on a daily basis, he agreed.  It was put to the witness that the position of Marina Superintendent was not given on a day-to-day basis, it was held for a period. Mr O’Sullivan said that there was no doubt that the Complainant was hired as a GO but over the years he was assigned duties of the Marina Superintendent.

It was put to the witness that the suggestion that one could come on Wednesday and meet a different Marina Superintendent that they met on Tuesday is incorrect. Mr O’Sullivan said that the role is changeable. He would expect that the Harbourmaster would do it for a good reason.

In redress, Mr O’Sullivan said that there were consultations with the engineers as to whether there was a need for Marina Superintendent role. There was a management meeting at which it was decided that there was no need at this stage, maybe in the future. If this was the case, a business case would have to be made, duties for the grade would have to be established, then a competition for the specific role would have to be held and a successful candidate would be appointed. At the time the grade did not exist.

Summary of direct evidence and cross-examination of Captain B, Harbourmaster

Captain B outlined his career and experience. He said that he became the Harbourmaster in March 2021 in Rossaveel, he then transferred elsewhere. He said that it was the first time he did a 9-5 job, he was getting used to the civil service.

Captain B said that is relationship with the Complainant was fine all along. He said that he initially understood that the Complainant’s role was a Superintendent of the Small Craft Harbour. While the Complainant was referred to as a Marina Superintendent, Captain B said that he kept correcting that. He said that the Complainant managed quite well. As he acted up in the Harbourmaster role, Captain B leaned on him in some respects. There were different processes, terminology, access to the system, so he was getting assistance from the Complainant and others.

With regard to the business cards, Captain B said that when he was asked to get some for himself, he asked the Complainant if he would like some. Captain B had no issue with putting “Marina Superintendent’ on the card, as the Complainant was giving them to the marina users.

Captain B said that the Complainant shared an office with an engineer, he also had an office in the marina.

Captain B said that the Complainant told him that there would be a competition to give him the Superintendent job and Captain B made representations on his behalf but he had no latitude to promote or demote someone.

Captain B said that he asked Dingle Harbourmaster about the matter and was told that there is a GO who also does marina maintenance, there was a similar set up in Castletownbere. There was an engineer, a foreman, one GO, the Complainant and the Harbourmaster. The Complainant was most capable GO to do computer recording etc.

Captain B said that he considers himself a manager of the port, but given the small number of staff, he wouldn’t redesignate people around. He said that in October/ November 2021, one GO made comments in passing about the Complainant’s role. Winter is a busy period and Captain B did not want any friction. In February 2022 another GO joined but one GO was out sick. Captain B said that he spoke with the Grade 1 Engineer about it. The Complainant was to continue in the small craft harbour but they wanted him to do more of what the other GOs did, more application from him around the harbour was needed. Captain B said that he had the impression that the Complainant would not like that. He considered himself a Marina Superintendent and Captain B said that he could not fault him for that.

Regarding the conversation in February 2022, Captain B said that the Complainant told him “you need to be careful what overtime you are putting” because another Harbourmaster had an inquiry. Captain B said that he had no issues with overtime but as it was brough to his attention, he contacted the other Harbourmaster to seek clarity. He denied that there were raised voices during the conversation. He said that he did not understand the Complaint accusing him of anything inappropriate. Captain B said that he had no issue with overtime, it was easy to explain. There was an audit and there were no issues. The Complainant did not refer to metal breaking etc. at the time. He mentioned the scrapped vessel, he said that there were issues with fees (during the previous Harbourmaster’s tenure). Captain B said that he went to the owner and asked what his plan was, that was it.

Captain B said that he had no feelings about this conversation, he took the Complainant’s advice on many things, it was the same with regard to the overtime.

Regarding events in March 2022, Captain B said that the Complainant was asked to take on more GO’s duties, he defended himself, he said that he was in the small craft harbour and did GO’s duties. The Complainant took issue with the use of vehicles. One was assigned to the Harbourmaster, the other to the foreman. The Complainant had an issue with that. The Complainant did not refer to the meeting in February 2022 at this meeting.

Captain B said that the events in March were not to punish the Complainant for a protected disclosure made in February 2022. Captain B denied that. He said that he hadn’t intended to stay in Rossaveel much longer. He was asked to have a conversation with the Complainant before a new Harbourmaster took over. As it happened, Captain B stayed there for another eight months. He said he had no ill will. A new Harbourmaster could come and decide differently.

Captain B said that after March 2022 the relationship soured. He thought that the Complainant stopped going to the canteen, they used to have a coffee and a chat together in the mornings. Captain B said that, to be fair, he probably should have made more effort, he knew the Complainant did not like this. He added that this did not change after the February 2022 meeting but after the March one.

Captain B said that he made a suggestion to the Complainant and the Grade 1 Engineer to meet again in a month to discuss. He went to the Complainant to say that the Grade 1 Engineer would be there but the Complainant said that there was no use talking to him as he had talked to the Chief Engineer.

Captain B said that the first time he heard of the allegations was after he got a letter from HR. The allegations were investigated and he was exonerated except for driving a government vehicle with a non-government person in it. Captain B said he had no concerns as he had nothing to answer.

Captain B said that the investigator investigated him, the Complainant, all paperwork. He said that it was a nerve wrecking experience, it was the first time he was investigated. He said that he did not have any animosity towards the Complainant. He knew that the Complainant was the best to do these duties. He did not want to make life difficult for the new Harbourmaster. He needed the Complainant to be around the harbour. He said that the Complainant did not make a protected disclosure to him and he did not penalise him.

Regarding the wrong rates charged and allegedly blaming the Complainant, Captain B said that his email was a response to an email from one of the accountants. He was informed of an issue, it was investigated, it was not an accusation, it was a mistake.

With regard to the matter of the changed lock and freezing out allegation, Captain B explained that there were 2 keys to the container, the Complainant had one and he had another one. The Complainant once forgot his and took the Harbourmaster’s one. On the day in question, Captain B needed to get to the office to get harbour documents, there was no key, but there was a locksmith on site (one of the contractors) so the lock was changed.

In cross-examination, Captain B agreed that the document referring to the Complainant as the Marina Superintendent were genuine and created by the Respondent. He agreed that the PMDS made a reference to the Marina Superintendent.

Captain B confirmed that he did not have latitude to promote or demote someone. He could designate tasks but not roles. He said that he had no intention to remove the Complainant from the small craft harbour, he was not changing the Complainant’s role. It was discussed that the Complainant had to do his GO role as well. The Complainant’s presence was needed around the harbour. He felt that the Grade 1 Engineer should be present at this conversation. It was put to Captain B that he wanted the Grade 1 Engineer present because he was about to make a significant intervention.

Captain B was not sure why the signage was changed but he believed that the Complainant made the signage himself. He said that the container was in the area that was undergoing work and had to be moved.

Regarding the PMDS, Captain B said that the Complainant could have requested a meeting. If an employee has any issue with what he put on the PMDS, they can come back to him. It was put to the witness that the Complainant’s PMDS was a “glowing report”. If other GOs had issues with him, it was not reflected.

Regarding the meeting on 3 February 2022, Captain B said that the Complaint told hm to be careful how much overtime he put on the overtime sheet and that another Harbour Master was audited. Captain B did not feel that there was any issue or wrongdoing. He took it on board as advice from someone who had been in this position before. He said that he called the other Harbourmaster about something else and inquired about the overtime matter. Captain B did not see the text of 11 February 2022 as an accusation of any wrongdoing. Captain B denied that the March events were in response to the issues raised. Captain B said that he wanted to have the duties clarified and the new Harbourmaster would do what was appropriate for them to run the harbour. He said that he did not treat the Complainant any differently.

Captain B said that some signage was changed at the entrance and that electricity was cut because of engineering works. The Complainant was not deprived a vehicle, he did not have a vehicle, but he could use one of the vehicles from the harbour.

Captain B repeated that him referring to a GO in his email regarding fees was not to undermine the Complainant, he did not make accusations.

Regarding the Complainant’s own vessel fees, Captain B said that he reviewed all the vessels and fees. The Complainant could have rung and said that there was an agreement in place, he did not know that staff were berthing vessels at no charge.

Captain B disputed that the Complainant did not take fees and he said that the Complainant would have issued emails to people whose fees were due, he would take the payment and clerical staff would issue an invoice.

In redress , Captain B said that he assumed the Complainant’s raising the overtime issue was an observation. He also thought that the email of 25 May 2022 was not a complaint of wrongdoing.

Summary of direct evidence and cross-examination of Mr Noel Clancy, Chief Engineer

Mr Clancy outlined his career and experience.

He said that he was telephoned by the Complainant on a Friday afternoon in June 2022. The Complainant wanted to meet to discuss the proposal to move the small craft harbour office. Mr Clancy said that he explained to the Complainant that it was a short notice and he was going on leave. They agreed to defer the issues until 23 June. Mr Clancy said that he knew from the call that there was friction between the Complainant and the Harbourmaster. He expected to discuss a HR dispute and come up with a resolution.

Mr Clancy said that he arrived at the harbour on 23 June 2022 at around 10.30am. He went to meet the Harbourmaster and the Grade 1 Engineer. He wanted to get some sense of what was wrong from the Harbourmaster’s and the area manager’s perspective. He spent approx. 1 hour with them. It was explained to him that the Complainant was upset over how things were in the harbour. He was told that after the March meeting, while the Complainant occupied the role of the Marina Superintendent, they wanted him to operate as a GO in the harbour area but they met with resistance.

Mr Clancy said that his plan was to meet with the Complainant and explain to him that the role, while it existed, it was not a job. He was needed to do the GO job more. He said that he discussed that with the Complainant who said that whatever he would be asked to do around the harbour, he would do it. The Complainant said that he had more to discuss. He went briefly through the allegations which were new to Mr Clancy. Mr Clancy said that he asked for a few minutes, he left the car and rang his superior. He was advised to have the allegations in writing. Mr Clancy confirmed that the typed notes exhibited at the hearing reflected what was in his notes that he took in the car. He sent the notes to the Complainant to have a look in case he missed anything. It was fair recollection of their meeting and the Complainant signed off the notes. Mr Clancy confirmed that the Complainant referred to the overtime matter as a “possible error” that he raised with the Harbourmaster. Mr Clancy said that he had no recollection of the Complainant mentioning a wrongdoing or discussing any previous wrongdoing.

Mr Clancy said that he was shocked. He said that the Respondent runs harbours in trust with the Harbourmasters so any accusations are shocking, he was surprised.

Mr Clancy said that he spoke with his senior manager. At the time he did not consider the matter as a protected disclosure. A decision was made, on advice from HR, to take the disciplinary route. He said that he contacted the Complainant to ask if he wanted to go the protected disclosure route, and the Complainant did not want to do so. The Complainant wanted the Harbourmaster to face up the allegations at a meeting. Mr Clancy said that he felt that the accusations were very serious and merited a proper investigation.

Mr Clancy said that the Internal Investigation Unit are experts in this type of investigations. A unit is appointed by HR, carries out an investigation and reports back to HR, himself and the accused. 

Mr Clancy said that the Complainant’s solicitor’s letter of 23 November 2022 was the first time when a protected disclosure emerged. He said that in his reply he stated that the Complainant was “fully aware” of the investigation. He said that the investigation was carried out under the auspices of the Civil Service Disciplinary Code so the accused and those with specific interest would get the report. He said that he offered mediation in the context of trying to establish a proper working relationship. He said that the request was repeated (a letter dated 12 January 2023) and his reasoning remained the same, the report was confidential. It was put to Mr Clancy that the Complainant alleged that this response in itself is a form of penalisation. Mr Clancy said that it certainly never intended to be penalisation.

In cross-examination, Mr Clancy confirmed that on 23 June 2022 he was told about the prioritisation of the roles. He presumed it was the area manager and the Harbourmaster who decided on that. He did not ask or know why. He presumed it was made for a legitimate reason. He said that he did not know about any previous issues. His understanding was that it was decided for operational reasons. Mr Clancy said that he was not told at the time that the decision to change the Complainant’s duties was put on hold. Mr Clancy said that the Complainant had said at the meeting that he would do whatever he is asked to do.

Mr Clancy was asked if the Complainant’s allegations regarding the treatment he endured which were included in the notes of the meeting of 23 June 2022 were ever investigated. Mr Clancy said that he could not say if they were. It was put to Mr Clancy that the Complainant what the Complainant was saying was that he was penalised. Mr Clancy said that he would not be in a position to know. The Complainant wanted to face the Captain and Mr Clancy left it with HR. Mr Clancy said that the original version of his notes did not include the alleged penalisation part, the Complainant included it afterwards. He said that he did not dispute it then and he would not dispute it now though. He said that the Complainant’s big issue were the accusations made against the Harbourmaster. He said that he made offers of support in his letter to the Complainant’s solicitor.

Mr Clancy confirmed that a colleague in HR asked if the Complainant wanted to proceed with the protected disclosure. Mr Clancy then asked the Complainant who said that he did not. It was put to Mr Clancy that the Complainant probably did not know what a protected disclosure was. Mr Clancy replied that probably no more what he knew at the time. The witness was referred to the Respondent’s Protected Disclosure Policy and Procedure and was asked if the protected disclosure route was not more appropriate. He replied that it was a matter of opinion.

Mr Clean confirmed that he shared the Complainant’s solicitor’s letter of 23 November 2022 with HR but he had no indication as to whether the penalisation alleged in the letter was investigated.

The issue for me to determine is whether the Complainant made a protected disclosure as defined by the Act and whether he was penalised for doing so.  

The Complainant alleges that he suffered persistent and ongoing adverse treatment following the referral of two separate protected disclosures in February 2022 and in June 2022.

In denying these allegations, the Respondent submitted that the matters raised by the Complainant in February 2022 did not constitute a protected disclosure within the meaning of the Act. The Respondent accepted that the matters raised on 23 June 2023 constitute protected disclosure, albeit at the time it was dealt with as a disciplinary matter. However, it was submitted that the Complainant did not suffer any form of adverse treatment of any description in the course of his employment as a result of making the disclosure.

Protected Disclosures Act

The entire Act came into operation on 15 July 2014 (Protected Disclosures Act 2014 (Commencement) Order 2014 (S.I. No. 327 of 2014). The amendments effected by the Protected Disclosures (Amendment) Act 2022 came into operation on 1 January 2023 (S.I. No. 510 of 2022.)

Schedule 7 of the Act, as amended stipulates, inter alia:

‘2.

Subject as provided for therein, section 12 (amended by section 21 of the Act of 2022) and Schedule 2 (amended by section 25 of the Act of 2022) shall apply where a worker within the meaning of section 3 (being that section in the terms as it stood before the commencement of section 4 (a)(iii) of the Act of 2022) who is or was an employee—

(a) made a protected disclosure within the meaning of section 5 (being that section in the terms as it stood before the commencement of section 6 of the Act of 2022) before the date of the passing of the Act of 2022, and

(b) was penalised after the date of the passing of the Act of 2022 for having made such a disclosure.

6.

Subject as provided for therein, section 12 (amended by section 21 of the Act of 2022) and Schedule 2 (amended by section 25 of the Act of 2022) shall apply where—

(a) before the date of the passing of the Act of 2022, a worker within the meaning of section 3 (being that section in the terms as it stood before the commencement of section 4 (a)(iii) of the Act of 2022) who is or was an employee—

(i) made a protected disclosure within the meaning of section 5 (being that section in the terms as it stood before the commencement of section 6 of the Act of 2022), and

(ii) was penalised for having made such a disclosure, and

(b) proceedings under section 12 (amended by section 21 of the Act of 2022) are initiated after the commencement of the said section 21.’

Time limits

The Respondent contended that the judgment in HSE v McDermott [2014] IEHC 331 requires that the Adjudication Officer examine the complaint as framed by the Complainant. The Respondent argued that, having done so, and in line with the judgment in, the Complainant’s claim should be found out of time in its entirety.

The Complainant argued that the WRC has jurisdiction to investigate any alleged penalisation that occurred within six months from the date of the referral of the complaint and, on extension, within 12 months.

It has to be noted that HSE v McDermott addressed cognisable periods in claims under the Payment of Wages Act 1991 not the Protected Disclosures Act. It was a specific judgment regarding a specific piece of legislation which is different in its origin, nature, and intent to the Protected Disclosures Act. There is no payment of wages complaint encompassed in this case. The question in this case is whether there has been a contravention of the Protected Disclosures Act.

The time limits are prescribed by section 41 of the Workplace Relations Act, 2015 as follows:

‘(6) Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.’

Subsection 8 stipulates that:

‘(8) An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.’

It is for the Complainant to establish that there is reasonable cause for the delay in presenting a claim under the Act to the Director General of the WRC. The general principles which apply are that something must be advanced which will both explain and excuse the delay. 

The established test for deciding if an extension of time should be granted for ‘reasonable cause’ is set out in the Labour Court determination in the case of Cementation Skanska (Formerly Kvaerner Cementation) Limited v Carroll DWT0338 and is summarised in Salesforce.com v Alli Leech EDA1615 wherein the Labour Court stated:

‘The established test for deciding if an extension should be granted for reasonable cause shown is that formulated by this Court in Labour Court Determination DWT0338 Cementation Skanska (Formerly Kvaerner Cementation) v Carroll. Here the test was set out in the following terms: -

“It is the Court's view that in considering if reasonable cause exists, it is for the claimant to show that there are reasons which both explain the delay and afford an excuse for the delay. The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd. In the context in which the expression reasonable cause appears in the statute it suggests an objective standard, but it must be applied to the facts and circumstances known to the claimant at the material time. The claimant’s failure to present the claim within the six-month time limit must have been due to the reasonable cause relied upon. Hence there must be a causal link between the circumstances cited and the delay and the claimant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would have initiated the claim in time.”

In that case, and in subsequent cases in which this question arose, the Court adopted an approach analogous to that taken by the Superior Courts in considering whether time should enlarged for ‘good reason’ in judicial review proceedings pursuant to Order 84, Rule 21 of the Rules of the Superior Courts 1986. That approach was held to be correct by the High Court in Minister for Finance v CPSU & Ors [2007] 18 ELR 36.

The test formulated in Cementation Skanska (Formerly Kvaerner Cementation) v Carroll draws heavily on the decision of the High Court in Donal O’Donnell and Catherine O’Donnell v Dun Laoghaire Corporation [1991] ILRM 30. Here Costello J. (as he then was) stated as follows:

“The phrase ‘good reasons’ is one of wide import which it would be futile to attempt to define precisely. However, in considering whether or not there are good reasons for extending the time I think it is clear that the test must be an objective one and the court should not extend the time merely because an aggrieved plaintiff believed that he or she was justified in delaying the institution of proceedings. What the plaintiff has to show (and I think the onus under O. 84 r. 21 is on the plaintiff) is that there are reasons which both explain the delay and afford a justifiable excuse for the delay.”

In Cementation Skanska, the Court further held that:

‘The length of the delay should be taken into account. A short delay may require only a slight explanation whereas a long delay may require more cogent reasons.’

In the more recent matter of Leon Kinsella -v- Anson Friend DWT209, the Labour Court described the test to establish reasonable cause in the following terms:

‘It [is] clear from the authorities that the test places the onus on the applicant for an extension of time to identify the reason for the delay and to establish that the reason relied upon provides a justifiable excuse for the actual delay. Secondly, the onus is on the applicant to establish a causal connection between the reason proffered for the delay and his or her failure to present the complaint in time. Thirdly, the Court must be satisfied, as a matter of probability, that the complaint would have been presented in time were it not for the intervention of the factors relied upon as constituting reasonable cause. It is the actual delay that must be explained and justified. Hence, if the factors relied upon to explain the delay ceased to operate before the complaint was presented, that may undermine a claim that those factors were the actual cause of the delay. Finally, while the established test imposes a relatively low threshold of reasonableness on an applicant, there is some limitation on the range of issues which can be taken into account.”

The Complainant applied for an extension of the time limit in the within case on the basis that the Complainant tried to resolve the matter internally. It was argued that it is a public policy matter not to penalise a complainant for attempting to resolve the matter internally.

In Dublin City Council v Laurence A. Skelly DWT 212 the Labour Court held as follows:

‘This Court has consistently held that a complainant’s decision to delay referring a statutory complaint to the Workplace Relations Commission beyond the six-month time-limit provided for generally in section 41 of the Workplace Relations Act (and in comparable provisions in other individual employment enactments) for the purpose of exhausting an alternative means of resolving their dispute does not constitute reasonable cause for the delay. One such decision in which the Court considered this matter is Business Mobile Security Services Limited T/A Seneca Limited T/A John McEvoy EDA1621. The Complainant/Appellant in that case had sought to apply for an extension of time on the basis that he had attempted to resolve his dispute through the Respondent’s established internal procedures. The Court held that the Complainant had not thereby established reasonable cause for his delay:

“The Court finds that the issues that arose in the course of those meetings were in the nature of industrial relations grievances that contained no indication that a complaint under the Act was either imminent or in contemplation. They amounted to an alternative way of resolving the issues in dispute and did not form part of a procedure that acted as a prelude to commencing a complaint under the Act. Instead the Complainant decided to forego the option of proceeding under the Act and instead chose to try to settle the matters in dispute through other means. When that did not work out to his satisfaction he then sought to rely on his choice to justify the delay in bring proceedings under the Act.’

InTesco Ireland Limited Tesco Express v Ali Raza Khan UDD1965 the Court held:

“Having examined the matter the Court does not accept that the processing of an internal grievance can be considered as a cogent reason which prevented the lodging of a complaint under the Acts in time. The Court is of the view that the Complainant cannot circumvent the time limits set out in the Acts by seeking to rely on an internal procedure that did not prevent him from bringing his complaint within the statutory time limit. The Court addressed this issue in Brothers of Charity Services Galway v Kieran O’Toole[EDA 177] where it held:-

‘The Court cannot accept that deploying the Respondent’s internal procedures operated to prevent the Complainant from initiating the within complaints within the statutory time limit provided under the Acts’.”

In line with the above, I do not accept that the Complainant’s desire to resolve the matter internally constitutes reasonable grounds why it was not presented in time.

I also note that the Complainant’s evidence was that he engaged with his Union representative in or around May 2022. From the email furnished it seems that the Complainant’s concerns related to how to protect his role. The was no indication that the Complainant contemplated a referral to the WRC. The Complainant also consulted with a solicitor firm in the summer or possibly in September 2022. The Complainant’s solicitor told the hearing that they were formally on record in October 2022. I note that, even at that juncture, the correspondence from the Complainant’s solicitor had no indication that the Complainant contemplated a referral of his claim to the WRC, rather it referred to necessary steps “including but not limited to an application to the High Court to protect his constitutional and contractual employment rights.”

Having regard to the foregoing, I find that the Complainant has failed to demonstrate “reasonable cause” as required by the Act. I decide that I would only consider evidence on the allegations of penalisation in the cognisable period, namely from 22 October 2022 to 21 April 2023.

Burden of proof

The 2022 Act amends the burden of proof in penalisation and detriment claims to provide that in any proceedings for penalisation or detriment, it will be deemed that they were as a result a protected disclosure being made, unless the employer or person whom it is alleged to have caused the damage proves that the act or omission concerned was based on ‘duly justified grounds’.

Section 12(7)(C) of the Act provides that:

(7C) In any proceedings by an employee under the Workplace Relations Act 2015 in respect of an alleged contravention of subsection (1), the penalisation shall be deemed, for the purposes of this section, to have been as a result of the employee having made a protected disclosure, unless the employer proves that the act or omission concerned was based on duly justified grounds.

In Aidan & Henrietta McGrath Partnership v Anna Monaghan PDD 2/2016 it was held that:

“The Court must first establish that a protected disclosure has been made before it can examine whether a penalisation within the meaning of the Act has occurred.”

Section 5(1) of the Protected Disclosures Act defines a “protected disclosure” as “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, 7B, 8, 9 or 10.”

Section 5(2) defines “relevant information” as that which, “in the reasonable belief of the worker…tends to show one or more relevant wrongdoing” and “it came to the attention of the worker in a work-related context.”

Section 5(3)(b) provides examples of a “relevant wrongdoing” :

(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.

While the parties disagreed as to whether the matters regarding overtime raised in February 2022 constituted protected disclosure, there was no dispute that the Complainant did make a protected disclosure on 23 June 2022. As, by application of the time limits, the Adjudication Officer is permitted to consider any alleged penalisation in the period from 22 October 2022 to 21 April 2023, it is sufficient to consider the matter in the context of the disclosure made on 23 June 2022.  While the Respondent decided at the time to consider the matter as an internal disciplinary issue, at the adjudication hearing the Respondent accepted that the matters raised by the Complainant on 23 June 2023 constituted protected disclosure.

While I note that in the Complainant did not expressly state that the issues raised on 23 June 2022 constituted protected disclosures, in the matter of Clarke v CGI Food Services Limited & Anor. [2020] IEHC 368, Humphries J. held that,

“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”.

Having regard to the foregoing, I find that the complaints raised by the Complainant on 23 June 2022 constitute protected disclosures within the meaning of the Act.

The next matter to be considered is whether the alleged adverse treatment suffered by the Complainant constitutes “penalisation” for the purposes of the Act.

Section 1 of the Act defines “penalisation” as,

“…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 a 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;

Having regard to the list above, it can be seen that the definition of what may constitute “penalisation” is extremely wide and encompasses almost any form of adverse treatment that leads to a detriment. In addition to the matters above, it is noted that the Section refers to these instances “in particular” and may include other forms of adverse treatment that leads to a detriment.

In this regard, the Complainant has alleged that he was subject to a “campaign of undermining and humiliating behaviour” and “ill-treatment”. The Complainant was asked to particularise the alleged penalisation and the following were detailed:

·       The alleged demotion from the Marina Superintendent role in March 2022;

·       The request to return the Respondent’s vehicle in March 2022;

·       The request to move out of the office at the end of May 2022; 

·       The removal of signage in May/June 2022;

·       The denial to share berthing information in June 2022;

·       The alleged accusations with regards to the charges in May 2022;

·       The second attempt to remove the Complainant from the office in June 2022;

·       The failure to progress his complaint in accordance with the relevant internal procedures;

·       The failure to issue the Complainant with the report of the disciplinary investigation regarding the allegations against Captain B;

·       The request to make payments for the Complainant’s private vessel;

·       The issuing of the memo of 19 April 2023 requesting harbour users not to use the Complainant’s work mobile number for any enquiries regarding the Ros an Mhíl Harbour including the Small Craft Harbour.

As per my finding above regarding the time limits, my decision will address the alleged acts of penalisation in the period from 22 October 2022 to 21 April 2023.

With regard to the Complainant’s assertion that the ongoing  failure to investigate his protected disclosure and failure to share the report of the disciplinary investigation constitutes penalisation, I note that the Complainant in his evidence agreed that as the matter was dealt with as a disciplinary one, he was not entitled to receive the report.

In Department of Agriculture, Food and The Marine  v Andrew Conway PDD197 Mr Conway submitted his claim of penalisation under the Act because he had formed the view that his protected disclosure was being ignored by the Respondent and had not been investigated by it. the Labour Court held that:

‘The Court is not in a position to assess the Complainant’s allegations regarding the degree of seriousness or otherwise the Respondent attached to his protected disclosure or the adequacy of the timeframe within which the Respondent investigated them. Quite simply, these are not matters that fall within the Court’s jurisdiction as provided for in the Act. The combined effect of section 12 and Schedule 2 of the Act, in so far as they relate to the Court’s jurisdiction, is to empower the Court, on hearing an appeal from a decision of an Adjudication Officer under the Act, to determine whether or not there has been a breach of section 12(1) of the Act in the case of the particular complainant before it.’

On appeal, in Andrew Conway v The Department of Agriculture, Food and the Marine [2020] IEHC 664, the appellant submitted that the respondent's conduct in ignoring the appellant's protected disclosure, failing to take it seriously, and failing to investigate it constituted “penalisation” for the purposes of section 3(1) of the 2014 Act. He also submitted that the Labour Court, in interpreting the word “penalisation”, had erred in failing to take account of the respondent's compliance with its obligations pursuant to the 2014 Act, with the relevant Code of Practice set out in S.I. No. 464 of 2015, and with the Department of Public Expenditure's published guidelines.

Hyland J. in dismissing the appeal said that this section required that “the detriment must be of a nature to harm or damage the person making the disclosure”. She understood that the claimant was frustrated and annoyed at the Department's 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 or elsewhere”. 

In paras 82- 85 Hyland J held that the Labour Court has no jurisdiction to evaluate the manner in which a protected disclosure has been treated by an organisation. There is no cause of action under the 2014 Act for failure to investigate a protected disclosure in accordance with an existing policy.

Having considered the above, I find that the Respondent’s failure to investigate the protected disclosure and to furnish the Complainant with the outcome report does not constitute a detriment for the purposes of the Act.

In relation to the memo of 19 April 2023 requesting harbour users not to use the mobile number that was assigned to the Complainant for any enquiries regarding the Ros an Mhíl Harbour including the Small Craft Harbour but rather to contact the Harbourmaster, I find that the memo was issued by Captain B’s successor, Captain C who took over the Harbourmaster role in or around March 2023. At the time of the issuing of the memo, the Complainant had been on sick leave for some 6.5 months. The memo does not make any reference to the Complainant or the Complainant’s role but rather requests that any inquiries be directed to the Harbourmaster. In light of the Complainant’s long term absence, I accept that the decision was made for operational reasons. I cannot find sufficient connection between the issuing of the memo and the protected disclosure made by the Complainant in June 2022.

In relation to the Respondent’s request that the Complainant pays fees for his vessel, the Complainant asserts that the practice was that staff were not charged fees and, indeed, he was never charged previously. He contended that he was singled out in that regard. Captain B gave evidence to the effect that he was not aware of the arrangement and that he reviewed the payments of all staff. I note that the issue of non-payment did not arise in 2021 when Captain B was already in situ. If the staff were required to pay the fees, the Complainant would have been due to pay his winter berth fees for 2020/2021. There was nothing put before me to substantiate Captain B’s statement that the payments or non-payment of fees due of any other staff members were reviewed or applied. I note that, while Captain B initially emailed the Complainant on 11 October 2022 (outside the cognisable period), the invoice was dated 1 December 2022 and the Final Reminder threating the Complainant with the commencement of legal proceedings in the event that he fails to pay the fees by 26 April 2023 was dated 19 April 2023.

Having carefully considered the matter, I find that the Complainant was not required to pay and has not paid any fees from 2018 and the issue was only raised by the Respondent in the end 2022. I therefore conclude that the request to pay the fees was as a result of the Complainant raising a protected disclosure.

The purpose of the 2014 Act is described in its long title as being ‘An Act to make provision for and in connection with the protection of persons from the taking of action against them in respect of the making of certain disclosures in the public interest and for connected purposes.’  Protection for workers in that regard is vital, not only to protect those who speak out, but also to encourage others to come forward when wrongdoing is discovered. The Act is intended to act as a deterrent to employers and others from taking retaliatory action against such workers and this is reflected in the level of compensation that I consider just and equitable having regard to all the circumstances.

I declare this complaint to be well founded. I require the Respondent to pay the Complainant compensation of €25,000 which I consider just and equitable having regard to all the circumstances.

Protected disclosure- penalisation-

Complainant

Respondent

Parties

Padraic  O'Toole

Department Of Agriculture, Food & The Marine

Representatives

Michael Kinsley BL instructed by J.O.S Solicitors

Niall Fahy BL instructed by the Chief State Solicitor’s Office

Act

Complaint Reference No.

Date of Receipt

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

CA-00056225-001

21/04/2023

The Complainant commenced his employment with the Respondent in March 2018. The parties confirmed that the Complainant’s weekly remuneration in respect of his employment calculated in accordance with regulations under section 17 of the Unfair Dismissals Act 1977 was €890.65.

The Complainant referred his complaint to the Director General of the WRC on 21 April 2023 alleging that he was penalised by the Respondent for making two protected disclosures.

Mr Kinsley BL, on behalf of the Complainant, submits as follows.

The Complainant commenced employment with the Respondent in March 2018 as a General Operative. The Complainant was responsible for the day to day running and maintenance of the marina at Rosaveel, County Galway.

In 2019, the Complainant was assigned the role of Marina Superintendent.

In April 2020, the Complainant took up the role of Harbourmaster in an acting up capacity. The Complainant remained in this role for 11 months and, at the Respondent’s request completed a one-year diploma to qualify for the position of Harbourmaster.

A new Harbourmaster, Captain B was appointed in March 2021 and the Complainant returned to his duties as Marina Superintendent.

In February 2022, the Complainant was required to complete daily logs and records at the marina owing to the absence of the Harbourmaster for a period. At this point, the Complainant uncovered discrepancies in the payment of overtime to members of staff at the harbour.

The Complainant brought his concerns regarding the payment of overtime when it was not due, to the Harbourmaster’s (Captain B) attention in February 2022 and was met with an extremely hostile response.

The Complainant also raised other concerns regarding the expenditure of public funds and inappropriate financial arrangements at the harbour to the Harbourmaster’s attention at this time. In particular, the Complainant raised concerns regarding the selling of scrap metal, the property of the Harbour Authority, for significantly below value and the taking of inappropriate payments by the Harbourmaster at the harbour.

In March 2022, the Complainant was asked to attend a meeting and was effectively demoted by the Harbourmaster and the Grade 1 Engineer. The Complainant was informed that he would be relieved of his duties as Marina Superintendent and that he would assume more minor duties. The Complainant was also informed by the Harbourmaster that he would no longer have the same use of a company vehicle that he had theretofore.

In the following period, the Complainant was subjected to a campaign of undermining behaviour by the Harbourmaster in retaliation for the matters raised by the Complainant. This behaviour included the removal of signs from the harbour regarding the Complainant’s role, removal of the Complainant’s details from relevant paperwork, removal of the work vehicle the Complainant was using, undermining the Complainant by not sharing information necessary for the Complainant’s role, such as berthing information, disconnecting the power supply to the Complainant’s place of work and falsely accusing the Complainant of overcharging of customers at the Marina. The Complainant was isolated and undermined by the Harbourmaster.

The Complainant was due to attend a meeting on 23 June 2022 with the Harbourmaster and the Grade 1 Engineer. Initially it was intended both the Harbourmaster and Complainant would attend this meeting as arranged by the Mr Clancy (Chief Engineer), following earlier concerns as raised to him directly by Complainant. However, shortly before the meeting was due to commence, the Mr Clancy informed the Complainant that the Harbourmaster wished for the meeting to be conducted in the Complainant’s absence.

After the said meeting, the Complainant was contacted by Mr Clancy who informed the Complainant that the Harbourmaster had made a number of completely unfounded allegations against the Complainant regarding the collection of charges. The Complainant completely refuted these allegations and informed Mr Clancy that these allegations were being raised in retaliation for the matters that had been raised by the Complainant. The Complainant then itemised the concerns that he had in the workplace and communicated them to Mr Clancy.

Mr Clancy informed the Complainant that the matters raised by him would be investigated fully, however no adequate investigation of the serious concerns raised by the Complainant took place.

The Complainant raised the issue of his mistreatment with the Respondent; however, no adequate investigation was carried out. The Complainant’s solicitor wrote to the Respondent in November 2022 seeking a full investigation of the matters raised by the Complainant. The Complainant’s solicitor again repeated the subject matter of the protected disclosures made by the Complainant and sought assurances that the Complainant would not be subjected to further ill-treatment as a result of having raised concerns.

In reply, the Respondent asserted that an investigation of the matters raised by the Complainant had in fact occurred but refused to furnish the Complainant with details of the said investigation.

The Complainant’s solicitor wrote to the Respondent seeking details of the investigation which the Respondent claimed had taken place and seeking assurances regarding the future treatment of the Complainant.

The Complainant, via his solicitor continued to seek assurances from the Respondent regarding the investigation of the protected disclosures raised by him and assurances regarding his future treatment by the Respondent, in correspondence from January to April 2023, however the Respondent refused to provide such assurances.

The Complainant therefore lodged proceedings in the WRC regarding the penalisation he had been subjected to by the Respondent.

In May 2023, the Complainant was informed that he would no longer be employed in the role of Marina Superintendent and would instead revert to the role of General Operative.

In August 2023, owing to the conduct of the Respondent, the Complainant was forced to resign his employment on 2 August 2023.

Applicable Law

The Protected Disclosures Act 2014 provides protection to employees who make disclosures of relevant information which has come to the employee’s attention in a work-related context. The 2014 Act was subject to significant amendment in January 2023 and it is the amended act which is quoted below. It is submitted on behalf of the Complainant that the penalisation to which he was subjected continued from March 2022 up to the termination of his employment in August 2023.

The concept of “relevant information” is set out at Section 5 as information which, in the reasonable belief of the worker discloses a relevant wrongdoing.

Section 5(3) lists the matters that will be considered “relevant wrongdoings” under the 2014 Act as:

(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 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.

(emphasis added)

Section 3(1) of the Act defines “disclosure” as “in a case in which information disclosed is information of which the person receiving the information is already aware, means bringing to the person’s attention”.

In order to be considered a “protected disclosure” for the purposes of the 2014 Act, the relevant information must be reported in accordance with either Section 6,7,8,9 or 10 of the Act.

Section 6 of the 2014 Act provides for the reporting of relevant information to a worker’s employer.

Section 5(8) of the 2014 Act defines the burden of proof regarding the question of whether a disclosure is a “protected disclosure” for the purposes of the 2014 Act. It states:

“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.”

The test set out in Section 5 is that of “reasonable belief”. It is therefore necessary only for the worker making the disclosure to have held a “reasonable belief” that the information disclosed a relevant wrongdoing. In the UK case of Babula v. Waltham Forest College [2007] EWCA Civ 174 the Court of Appeal held, in interpreting a similar requirement in UK legislation that:

“Provided his belief (which is inevitably subjective) is held by the Tribunal to be objectively reasonable, neither (1) the fact that the belief turns out to be wrong – nor, (2) the fact that the information which the Complainant believed to be true (and may indeed be true) does not in law amount to a criminal offence – is, in my judgement, sufficient, of itself, to render the belief unreasonable and thus deprive the whistleblower of the protection afforded by the statute.”

Section 12 of the 2014 Act 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.”

Section 3 of the 2014 Act defines “penalisation”.

Section 12(7C) of the 2014 Act provides the burden of proof in proceedings under Section 12:

“In any proceedings by an employee under the Workplace Relations Act 2015 in respect of an alleged contravention of subsection (1), the penalisation shall be deemed, for the purposes of this section, to have been as a result of the employee having made a protected disclosure, unless the employer proves that the act or omission concerned was based on duly justified grounds”.

In Aidan & Henrietta McGrath Partnership v. Anna Monaghan PDD 2/2016 the Labour Court issued a determination in which it considered whether the treatment to which the Complainant in that case had been subjected could be attributed to her having made a protected disclosure. In finding for the complainant, the Court outlined the test applicable to whether a complainant has been penalised and whether certain treatment of a worker can be attributed to the making of a protected disclosure.

The Labour Court was of the view that while there may be more than one underlying cause for the treatment to which an employee is subjected, there will be a breach of Section 12 of the 2014 Act where the making of the protected disclosure can be identified as an operative cause. It stated:

“Thus the detriment giving rise to the complaint must have been incurred because of, or in retaliation for, the Complainant having committed a protected act. This suggests that where there is more than one causal factor in the chain of events leading to the detriment complained of the commission of a protected act must be an operative cause in the sense that “but for” the Complainant having committed the protected act he or she would not have suffered the detriment. This involves a consideration of the motive or reasons which influenced the decision maker in imposing the impugned detriment”.

It is submitted that the disclosures made by the Complainant during the course of his employment, are protected disclosures for the purposes of the 2014 Act. It is submitted that the various disclosures made by the Complainant contained “relevant information” and related to “relevant wrongdoings” for the purposes of Section 5.

In Norbrook Laboratories v. Shaw [2014] UKEAT the Employment Appeal Tribunal, upheld a decision of the Employment Tribunal that the raising by an employee of concerns regarding the safety of employees was a matter which fell within Section 43 of the Employment Rights Act, which contains provisions similar to those of the Protected Disclosures Act 2014.

In Norbrook, the Court held that the protected disclosure had been made over the course of several communications by the relevant employee.

It is submitted that the disclosures made by the Complainant concerned the use of public funds and the actions of a public body.

It is submitted that the Complainant made his disclosures in a manner compliant with the requirements of Section 6 of the 2014 Act.

In Baranya v. Rosderra Meats, the Supreme Court made clear that the fact that a complaint amounts to a grievance does not exclude it from being considered a “protected disclosure” for the purposes of the 2014 Act.

It is submitted that the matters raised by the Complainant were protected disclosures for the purposes of the 2014 Act and were made in accordance with the 2014 Act. It is submitted that the Complainant was penalised by the Respondent for having made protected disclosures.

It is submitted that the Respondent’s actions in isolating the Complainant and refusing a reasonable request for transfer, amounted to penalisation contrary to the 2014 Act.

It is submitted that the Respondent’s actions in refusing to properly deal with or investigate the matters raised by the Complainant demonstrate that the Respondent acted in a hostile manner when the Complainant raised protected disclosures.

The Complainant sought to have his employer deal with the matters being raised by him, and the ill-treatment which he endured from 2022 through to his resignation in August 2023, however, no action was taken.

In response to the preliminary matter of time limit raised by the Respondent, Mr Kinsley BL noted that in McDermott which the Respondent relied on there were very defined breaches that happened in sequence. In this case, the matter relates to a protected disclosure and a campaign of penalisation thereafter which took place over a period up until 2023. It was argued that the Respondent cannot assert that once penalisation started long time ago, it could be continued and the Complainant has no case. It was argued that penalisation has been occurring from 2022 and occurred within six-month from the date of the referral of the claim. In the alternative, each incident was a separate incident of penalisation on its own. It was acknowledged that the Adjudication Officer cannot make an award for matters that are outside the six-month time frame, they are, however, entitled to have regard to these matters.

Mr Kinsley BL made an application to extend the time limit to 12 months on the basis of very delayed engagement by the Respondent to have the treatment rectified. It was asserted that this meets the threshold of reasonable cause.

It was further asserted that there is strong public policy to not penalise the Complainant for trying to resolve the matter internally. Mr Kinsley BL asserted that it would be contrary to public policy not to try to engage and resolve the matter internally before referring it to the WRC. Mr Kinsley BL made reference to Hughes v Revenue Commissioners. However, no citation or any details of the judgment were provided.

Concluding  remarks

In his concluding remarks, Mr Kinsley BL said that the Complainant’s communication has all the ingredients of a protected disclosure for which he was penalised. He talked about the overtime issue, thereafter he was relieved from his duties. Mr Kinsley BL asserted that Captain B’s evidence was not credible.

Mr Kinsley BL said that the Respondent’ s case that there was no Marina Superintendent’ role was utterly refuted because of the evidence produced. It was asserted that the role existed and was taken from the Complainant. Mr Clancy never inquired why. The Respondent never, not even after his solicitor’s letter, investigated the Complainant’s claims of penalisation, and nobody ever talked to him about the investigation.

Summary of direct evidence and cross-examination of the Complainant

The Complainant in his direct evidence said that he commenced his employment with the Respondent in March 2018. The Complainant said that the Respondent amalgamated two roles. He was working as Marina Superintendent in the summer and more as a GO in the winter. He was told by the then Harbourmaster that, as there was no separate Marina Superintendent role in the harbour, duties (not all admin) were added to the GO job.

The Complainant said that the then Harbourmaster based the Complainant’s Superintendent role on a set up that was in operation in Dingle harbour as it worked well there. The Complainant said that he had a very good relationship with the then Harbourmaster.

The Complainant said that as the marina got much busier, the then Harbourmaster decided to have a full-time Marina Superintendent. The Complainant was assigned this role during his 2019 Performance Management & Development System (‘PMDS’) meeting. However, he was told to wait to be graded correctly. He referred to his 2019 mid-year review where both himself and the then Harbourmaster referred to his role as Marina Superintendent and the Harbourmaster stated that the Complainant “was assigned the task of Marina Superintendent as a major part of his general harbour duties and he has exceeded expectations in his approach to this challenging position”. The end of year evaluation in December 2021 by the Harbourmaster also states that he “carried out the duties of Small Craft Harbour superintendent to a high standard”.

The Complainant said that following the then Harbourmaster’s retirement, he was approached by the Respondent and asked to act up. The Complainant said that initially he had no interest, but he was told that he might be able to apply for a full-time permanent Harbourmaster position. The Complainant said that a case was made to change the requirements for the position of the Harbourmaster as the Respondent wanted him in the role. The Respondent also paid for him to complete a Line Management course for the Marina Superintendent and then a Harbourmaster Diploma. As initially the request for the Harbourmaster course was refused, a case was made in writing to HR by the then Harbourmaster,  the Grade 1 Engineer and was supported in writing by the Chief Engineer to revisit the refusal.

The Complainant said that Captain B was successful in the Harbourmaster competition and he started in March 2021. Initially they had a good relationship. The Complainant returned to his Superintendent role.

The Complainant said that the Harbourmaster was not on site very often as he lived away so the Complainant took up duties to make it easier for him and to help out.

The Complainant said that in 2021 there was no mention that his duties would have to be changed or that anyone was unhappy with him in the role.

The Complainant said that in January 2022 the relationship was still OK, but all staff talked about variety of issues daily.

The Complainant said that when he was acting as the Harbourmaster he was offered €2k by a vessel owner to scrap a vessel. He said that it would be €37-38k in harbour fees or the alternative was to scrap in Limerick. Either was a massive cost. The Complainant alleged that it was done by the new Harbourmaster who benefited financially from that. The Complainant alleged that the process that is required was not applied in this case.

The Complainant said that in February 2022 the matter of overtime came to his attention. He saw that from Christmas time staff were paid overtime but were not there. The Complainant said that he told the Harbourmaster that he needed to be careful, it was about public money and incompetence.

The Complainant said that he saw in March that the Harbourmaster “was off” with him. He said that the Harbourmaster entered the office, closed the door behind him and told the Complainant that he should not be doing the logs etc. in the future. The Complainant said that he told the Harbourmaster that he was not doing it the right way, that all are talking about fraud. The Harbourmaster asked what he meant, and he listed the scrap, overtime, etc.

The Complainants said that he had never had any dispute at work, so he had great recollection of what happened. He said that he was shocked, this should not happen in a harbour, in public sector.

The Complainant said that it was a busy time of the year, they did not have many interactions but he could see the frostiness between them.

The Complainant said that he got a call on the morning of 27 March 2022 asking him to a meeting with the Harbourmaster and the Grade 1 Engineer. At the meeting, the Complainant was told that there is restructuring, there would no longer be a Marina Superintendent and he would go back to his role as a GO. The Complainant said that he told them that it was in retaliation for the meeting in February, but they denied it. It was agreed at this stage that the Complainant would remain in his role and it would be reviewed in October.

The Complainant said that he was told that he had no use of a vehicle he had to date. It was impossible to do his job with no vehicle. The Harbourmaster continued to undermine him. The signage with his name was removed, his business cards were removed. The Complainant said that the Harbourmaster ordered the business cards for him in May/June 2021. He had nothing to do with ordering of the cards or signage.

The Complainant said that he could not believe what was happening, he was always hardworking. He said that he was out sick on/off since.

The Complainant said that on 2 June 2022 there was an attempt to move the marina office. The Complainant said that he brought to the Harbourmaster’s attention that it was agreed that he will remain in his role until October. He contacted Mr Clancy and told him that he was being targeted. Mr Clancy called him back and said that he told the Harbourmaster not to move the container until 23 June 2022 when a meeting was scheduled. The Complainant said that he was not moved on 2 June, but power was cut in his office and he was moved prior to the meeting on 23 June 2022. He said that the three weeks in June were unbearable.

The Complainant said that Mr Clancy sent a request for a meeting to the Complainant, the Harbourmaster, and the Grade 1 Engineer. The Complainant met Mr Clancy in the canteen on the day in question. He was told that Mr Clancy would first meet with the Harbourmaster. Afterwards, Mr Clancy met the Complainant in the carpark. Mr Clancy told the Complainant that he was blamed for incorrect charges. However, the Complainant said he did not issue any charges. In 2018 it was the then Harbourmaster. He said that these issues were never raised with him before, it was just “tit for tat”.  The Complainant said that the matters that he discussed with Mr Clancy on the phone were again discussed at the carpark. Mr Clancy took notes, asked the Complainant to sign them and said that he would be in touch.

The Complainant said that he contacted HR and was told that the best would be to discuss it between himself and the Harbourmaster. He did that about two weeks after 23 March 2022 but nothing changed. He inquired about a move with Mr Clancy and Mr O’Sullivan, the Assistant Chief Engineer.

The Complainant said that the Harbourmaster tried to undermine him, he was telling people to bypass the marina office and to come to him directly, power was disconnected in the marina office, signage “marina office” was removed. The Complainant said that when he was out, his belongings and PC were removed from the office.

The Complainant said that he went out sick soon afterwards. He returned in October and it was the worst month of his life. He was given the worst jobs in the harbour, he was targeted. He went out sick again.

The Complainant said that he wrote to Mr Clancy on three occasions as he received no information regarding the investigation. He never received any report.

The Complainant said that he was never referred to a Protected Disclosures Policy of the Respondent.

The Complainant said that the Grade 1 Engineer asked him, after the first call to Mr Clancy, what was going on, he was trying to put stop on it, but it was just too far at this stage.

The Complainant referred to a letter dated 12 January 2023 from his solicitor to the Chief Engineer and said that it was a reflection of how he felt, being penalised. The Complainant said that he loved his job but the Respondent was sticking to its guns and once Mr Clancy told him that he was a GO, the Complainant knew that here was no future for him.

The Complainant referred to a letter dated 19 January 2023 from the Respondent that advised him to pursue the matter under the Civil Service Dignity at Work Policy if he believed that he was not afforded a safe place of work, free from bullying and harassment. He said that he went through all the processes.

The Complainant said that he was hoping to get resolution. He knew that the Harbourmaster wanted to move to another location, but senior management were sticking to their guns.

The Complainant said that it affected his wellbeing and his home life, he was under stress, he did not sleep, and it was terrible two years. The Complainant said that he lives locally, people knew that there was an investigation and they thought he did something wrong.

The Complainant referred to the booklets regarding competitions for appointment to the role of a GO from 2023, 2020 and 2017 (the competition he was appointed as a result of) and noted that only 2017 referenced duties relevant to the Marina Superintendent function.

The Complainant also referred to a letter dated 28 January 2020 and signed by the then Harbourmaster and the Chief Engineer requesting the Training and Development Unit to reconsider the rejection of the Complainant’s application for a payment of fees regarding the Diploma for Harbourmasters. The letter stated that the Complainant is employed as a GO and goes to say:

…in this particular case, perhaps GO is not the proper title for the position advertised. Marina Superintendent would be a more appropriate title; Section 2 (Job Specification) and Section 3 (Person Specification) of the information booklet more than demonstrated this. “

“…we were fortunate enough to have acquired a person that fits all the above criteria and has excelled in his role Marina Superintendent. During his 2 years in Rossaveel he has single handed managed the Marina (150 Berths) with minimal supervision.”

The Complainant also presented his business cards that stated his role as “Marina Superintendent”. The Complainant said that when the Harbourmaster took over, he ordered them for the Complainant.  The Complainant email signature stated, “Marina Manager”.

The Complainant further referred to a set up in Dingle on which Rossaveel was based that showed that there was a Superintendent role there.

The Complainant further referred to a Workforce Planning 2021 document issued by the Head Office in Clonakilty which listed the Complainant in the column entitled “Marina Superintendent” and not in the General Operative column.

Similarly, a document signed by the Harbourmaster listing employees authorised to drive the Respondent’s vehicles lists the Complainant as the “Marina Manager”.

The Complainant said that he received an email from the Harbourmaster on 11 October 2022 which was sent to the Complainant’s personal email address regarding alleged outstanding berthing payments for 2020-2022 for the Complainant’s vessel. The Complainant said that the harbour was utilised by him and other employees and prior to October 2022 there was never any charge and there was no indication that he would be charged. The Complainant then received a Final Reminder letter dated 19 Apil 2023 advising that legal proceeding would be initiated for the recovery of the amounts stated.

The Complainant took great offence to the email dated 26 March 2022 from the Harbourmaster to a named official in the Respondent organisation. The Complainant said that the Harbourmaster was trying to blame him for something that was not his error.

The Complainant confirmed that he had engaged with his union and was anxious to resolve the matter internally without the need to go to the WRC. He contacted HR in April 2022 and was told to talk to the Harbourmaster. He met with the Harbourmaster in May. He sought union advice on 25 May 2022 by email and spoke with the union representative who then told him that the union would not represent the Complainant if he engaged solicitors. He said that nobody advised him about time limits. He first contacted his solicitor in the summer of 2022 but formally briefed them in October 2022.

In cross-examination, the Complainant confirmed that he was hired as a GO. He said that, as there was no grade for Superintendent, a GO job was amalgamated with Superintendent one. He did not dispute that the then Harbourmaster could not have sanction a Superintendent post but he said that a person was doing this job during the summer and the then Harbourmaster assigned the Superintendent role to the Complainant in his PMDS review. He said that the Departmental Workforce Planning 2021 document listed him as a Superintendent. The Complainant confirmed that, when he was appointed to the role of Acting Harbourmaster he went through a competition.

It was put to the Complainant that one of the roles of a GO as per the role profile was to supervise the marina. The Complainant replied that this was not in any GO role profile prior or after the competition regarding his role. He acknowledged that the role profile provided for flexibility in the position and the supervisor could assign him duties. The Complainant said that he never refused any duties. The Complainant said it was not for him to answer if a different supervisor could take a different view on duties.

It was put to the Complainant that the fact that he supervised the marina in such a formal way was one of his duties, not a promotion. The Complainant said that he did not know why it was portrayed as a glorious job, it is a lot of cleaning, power washing, a busy job.

The Complainant was asked if he had a Superintendent when he was acting up. He said that he had only one GO, he did three roles himself.

It was put to the Complainant that the Chief Engineer had conversations with him regarding his appointment as a Superintendent. The Complainant said that he only brought it up when the Harbourmaster started to undermine him as it did not bother him up to then, there was no extra pay for the role.

It was put to the Complainant that he was a GO, and he was, from time to time assigned to do a Marina Superintendent role. The Complainant disputed that he said that all he ever did was the Superintendent job until the Harbourmaster had an issue with that.

It was put to the Complainant, and he agreed, that duties ‘a-h’ in the booklet were a GO’s duties. It was put to him that ‘(i)’ in the booklet were duties that “may be allocated”, that Marina Superintendent role could be assigned to him as a GO, and it could be taken away from him but his job title remained a GO. The Complainant said that it changed as it has become so busy that Marina Superintendent became a full-time job. The Complainant said that he did what he was requested to do. It was put to the Complainant that the then Harbourmaster could not have promoted him and the fact that someone signed off on his business card did not give him a promotion.

The Complainant disagreed that he resisted when the Harbourmaster tried to clarify his duties in March 2022. He said that he took up any duties. He said that he had no interest in the Harbourmaster role and when the new Harbourmaster took over, after 6-8 weeks shadowing to assist him, the Complainant returned to his job.

The Complainant denied that there was friction between him and other staff, he said that he would be shocked if they had issues with him as a Superintendent.

The Complainant confirmed that he informed the Harbourmaster that there was an inappropriate overtime applied.

The Complainant confirmed that he had a discussion with the Chief Engineer who took notes and then produced the typed version. The Complainant confirmed it was his signature on the document. It was put to the Complainant that he said that it could possibly be an “error”, that he had no written record of alleging wrongdoing. The Complainant said that he disclosed it in a meeting, not in writing.

It was put to the Complainant that he was not targeted, he was one of the GOs doing the GO job.

The Complainant was asked if Mr Clancy asked him if he would like to go the protected disclosures route. The Complainant said that he put his hands up, he told Mr Clancy that he did not know anything about protected disclosures, what it entailed. He did not say “yes” or “no”, he did not understand protected disclosures.

It was put to the Complainant that Mr Clancy could not treat it as a protected disclosure unless the Complainant asked him to treat it as such. As the Complainant did not do so, Mr Clancy had to use a different route. The Complainant said that he did not know that.

The Complainant agreed that he should not be an active participant in internal disciplinary process. The Complainant confirmed that he disagreed with the outcome of the disciplinary process, but he agreed that it was not a detriment that the investigation did not produce a result he expected. The Complainant said that people that should have been interviewed, were not. He also had to ask for the outcome twice or three times.

Mr Fahy BL, on behalf of the Respondent, submits as follows.

The Respondent denies that the Complainant is entitled to any relief on the grounds that he has not been penalised, he has not suffered any detriment and the majority of the acts of alleged detriment took place prior to any true allegation of wrongdoing.

The Respondent takes its obligations under the Protected Disclosures Act 2014 very seriously and it has a robust policy in place for dealing with protected disclosures. However, the Respondent contends that it has not penalised the Complainant in any way for the making of any protected disclosure.

Factual background, the Complainant’s employment and Circular DPE144/004/2015

The Complainant has been employed by the Respondent as a General Operative (“GO”) in the Marine Engineering Division of the Respondent. Throughout his employment, the Complainant has been based at Rossaveal Fishery Harbour Centre (“RVFHC”). There is no question that the Complainant is a competent employee and throughout his employment with the Respondent he has consistently been a very proactive and effective member of the team.

At the time of the commencement of his employment with the Respondent, his responsibilities were set out in the General Operative Competition Booklet.

Prior to 2021, the former named Harbourmaster (Captain A) was the Complainant’s line manager.

The position of GO is intended to be broad and flexible, with a mix of duties and responsibilities that vary between employees and over time in accordance with the operational needs of the fishery harbour. As appears from the General Operative Competition Booklet, the responsibilities of a GO, such as the Complainant were as follows:-

(a)    Carrying out maintenance and repairs within the Fishery Harbour Centre;

(b)    Carrying out maintenance and repairs to other piers, slipways etc, as directed by the Respondent’s Engineering Division;

(c)     Ensuring the safe keeping of all plant, tools, equipment and materials in the GO’s charge, or in use by others on site within their supervision;

(d)    Co-operating with the Respondent with regard to Safety, Health and Welfare at Work and comply with relevant Health and Safety legislation. Provide, where required, the duties of deputy Designated Person in Charge of Safety for site works;

(e)    Driving vehicles and machinery as required for the performance of harbour duties;

(f)      Ensuring that harbour property, piers and structures are maintained as safe and clean working areas;

(g)    Assisting vessels berthing and landing and servicing vessels when required;

(h)    Assisting in works involving the syncrolifts and boatyard area (where boatyard facilities are provided). This could involve raising and lowering vessels on the syncrolifts platform, movement of vessels in the boatyard area as well as maintenance of the equipment;

(i)      Such other duties, of an appropriate nature, which may be allocated by the Respondent or his or her assistants, such as:-

·       Supervise the Marina i.e. the small craft harbour (operational 7 days per week).

·       Operate close to deep water, across pontoons, boats and on ladders.

·       Supervision and recording vessels arrivals and departures.

·       Collect fees and account for monies.

·       Reporting damages and defects to the Harbourmaster.

·       Cleaning, painting and general maintenance duties throughout the harbour.

·       Shift work as required.

The Complainant agreed to these above terms of employment when he commenced work with the Respondent on or about 9 April 2018.

Until 2021, the Complainant’s duties included management and supervision of a small craft harbour. There was no monetary allowance or other financial benefit associated with the Complainant being assigned these duties. These duties were assigned to the Complainant by the then Harbourmaster during his tenure. As envisaged by the General Operative Competition Booklet a GO’s responsibilities and duties would vary from time to time in accordance with the needs of that GO’s line manager. Prior to 2021, the then Harbourmaster saw fit to assign the Complainant the responsibility of managing the small craft harbour.

The Complainant never enjoyed an entitlement (whether contractual or otherwise) to be given any specific duty. Nor was the Complainant ever informed or lead to believe that any of the responsibilities that were assigned to him at any given time were irrevocably or permanently assigned to him. Contrary to the Complainant’s assertion in his submissions he never was employed as a Marine Superintendent and there is no Marine Superintendent role in RVFHC.

After the then Harbourmaster’s retirement in April 2020, HR held an internal competition to fill the role of Harbourmaster in an “acting” capacity on a temporary basis. The Complainant was successful in this competition. The permanent position was advertised in December 2020 and the Complainant did not satisfy the minimum criteria for the role and so his application was unsuccessful. So, the Complainant served as acting Harbourmaster from April 2020 to March 2021. The Complainant had a successful tenure as Acting Harbourmaster. During his tenure as Acting Harbourmaster, the responsibility of supervising and managing the small craft harbour was retained by the Complainant and was not assigned to any of the other GOs.

A competition was held in order to secure a permanent appointment to the role of Harbourmaster in Rossaveal. Captain B was successful in this competition and he was appointed as Harbourmaster on 8 March 2021.

Upon the appointment of Captain B as permanent Harbourmaster, the Complainant reverted to his position as GO. During this time the Complainant wrongly presented himself as being a Marine Superintendent, including by the placing on a sign to this effect at the hut by the small craft harbour. There is no such role as Marine Superintendent at RVFHC.

The Respondent rejects the Complainant’s claim that he brought any wrongdoing to the attention of Captain B in February 2022. It is telling that this complaint was apparently never committed to writing. Captain B recalls that he and the Complainant had discussed the issue of overtime in February 2022 but it had been a reasonably innocuous conversation. The Complainant simply observed they ought to be careful to keep the levels of overtime low. This was made by way of advice or comment about budgetary concerns and was not a notification of wrongdoing, even in the most informal terms or by implication. There was no allegation made at the time of the improper payment of overtime or the payment of overtime that was not due. Furthermore, the Complainant made no allegation of wrongdoing, whether about scrap metal or inappropriate payments, to Captain B, or anyone else until June 2022 at the earliest.

The Respondent also rejects the Complainant’s claim that Captain B responded with hostility to the discussion of overtime. It was an innocuous conversation and there were no raised voices or disagreements. Captain B was astonished to learn – for the first time in September 2023 – that the Complainant apparently considered his comments in February 2022 to be a protected disclosure or otherwise a disclosure of wrongdoing.

As is to be expected, Captain B had his own operational strategy as regards the assignment of responsibilities among himself and his staff. It is not unusual that he would differ from one of his predecessors in this regard. As Captain B grew into the new role over 2021 it became increasingly clear to him that it was undesirable from a staff harmony perspective that one of the GOs would elevate himself above the rest as regards the assignment of responsibilities. The other GOs remarked to Captain B that the Complainant was unwilling or reluctant perform those parts of his role that he considered more menial. This was creating friction among the staff. Furthermore, the small craft harbour was not busy enough – save at certain times of the year – to require the attention of a dedicated member of staff.

There had been some discussions between the Complainant and Mr Clancy that the Complainant might be given the role of marine superintendent in the future. This was ultimately not pursued. The Complainant is well aware that he was not in fact the Marine Superintendent based on his request that he be assigned this role.

Because of these frictions and operational disadvantages of the Complainant purporting to enjoy an elevated status among the GOs, Captain B resolved to meet with the Complainant in order to clarify to him that he was a GO. It was necessary to explain to him that he was required to perform all of the functions of that role and not simply those which he would like to perform. Captain B wished to have Grade 1 Engineer present because he anticipated that the Complainant might respond negatively. Captain B contacted the Grade 1 Engineer several times in order to set up the meeting and it took several months before the meeting could be scheduled. The timing of the meeting was unrelated to any comments made by the Complainant whether in February 2022 or otherwise, as is wrongly suggested in his submissions. At the meeting it was clarified to the Complainant that he was a GO, not Marine Superintendent and that his wrongly presenting as having as such should cease. He was also informed that he was required to do all the tasks of GO.

Captain B was not punishing the Complainant but simply applying his own operational strategy to the management of the Harbour. The Complainant was not being demoted but rather he was being treated identically to all of the other GOs of which he was one. It is notable that this was the same operational strategy employed by the Complainant when he was Acting Harbourmaster, without any specific GO assigned the role of managing the small craft harbour.

The Complainant was disappointed by the fact that he was not given the sole responsibility of supervising the small craft harbour. This was done for operational reasons and did not have the intention (or effect) of punishing or penalising the Complainant. In any event, the clarification of the Complainant’s duties in March 2022 occurred before any protected disclosure or other complaint and could not have been a penalisation for something which had not yet happened.

On 23 June 2022, the Complainant verbally raised several allegations against Captain B to his line manager. In the course of doing so, the Complainant stated to Mr Clancy, that he wanted to meet with both Mr Clancy and Captain B, in order to go through the issues he raised.

Given the nature of the allegations raised, Mr Clancy considered it was inappropriate to put these allegations to Captain B in such an informal setting as suggested by the Complainant, without ensuring fair procedures were provided to all parties. Consequently, Mr Clancy did not agree to convene a face-to-face meeting with the Complainant and Captain B, but rather asked the Complainant to furnish him with a statement of his allegations. This document was initially prepared by Mr Clancy based on what had been reported to him by the Complainant.

On 5 July 2022, the Complainant signed the statement in which he detailed his allegations which had been prepared as a collaborative effort by him and Mr Clancy. The statement concludes by writing “This represents an accurate record of the issues I discussed with Noel Clancy on the 23rd June 2022.”

At no time did the Complainant use the term “protected disclosure”. Indeed, the Complainant was asked by Mr Clancy if he wished to make a protected disclosure and he declined to formally do so. Because of this, it was treated as an internal disciplinary procedure which is usually confidential. The Civil Service Disciplinary Code (Circular 19/2016) provides as follows at 3.2.10:-

“appropriate confidentiality will be maintained and information will only be disclosed where it is necessary for the investigation of the concern, where it is required by law or for other legitimate reasons.”

Had the Complainant invoked the protected disclosure procedure then then a different policy would have been followed, which includes an appeal process. It would have been inappropriate to invoke this procedure when not expressly requested to by the Complainant and so the only option was to treat it as an internal disciplinary matter.

In his complaint, the Complainant made several allegations against Captain B and the overall management of the harbour. These allegations included the following:-

(a)    The Complainant alleged that overtime was being paid over and above hours worked for weekend work from Christmas 2021 to February 2022. He further alleged that this resulted in a heated discussion with Captain B when the Complainant queried him about it.

(b)    The Complainant alleged that he had refused an approach to permit the breaking-up of a vessel in the harbour in exchange for payment of €2,000 while he was Acting Harbourmaster. He alleged that, by contrast Captain B had accepted such an approach and received a large envelope full of cash. It was also alleged that the owners of the vessel had given the staff a bag of prawns and €100.

(c)     The Complainant also alleged that Captain B had separately received €4,500 - €5,000 in cash for scrap metal that had been cleaned out of the net compound area.

(d)    It was alleged that Captain B did not work his full complement of required hours, was rarely on site and regularly used a harbour vehicle to drop a family member to a school 25 miles away.

(e)    It was alleged that Captain B wished to bring an end to the carpark lease and instead for the cash to be collected directly by harbour staff, enabling them to earn extra money.

(f)      The Complainant wrote to the accounts division to complain that the wrong rates were being charged to fishing vessels being berthed in the SCH. The Complainant alleges that he was blamed for this by Captain B although the issue predated his tenure as acting harbourmaster.

(g)    The Complainant also made allegations of a more general nature that he was treated “disgracefully” over the preceding few months, including meetings being held with no advance notice, agreed matters not being adhered to, changing locks in the office, the requesting of access to the Complainant’s private cabin when he was off sick, the removal of card machines and vehicles bypassing the complainant on work related issues, preventing him from meetings that he had requested and the telling of untruths about how busy the marina was.

The allegations raised by the Complainant were considered by Mr Clancy and by the Head of Human Resources. Mr Clancy considered the allegations to be very serious and – if proven – they would have amounted to a serious violation of the Civil Service Disciplinary Code. For this reason, a decision was made that the allegations raised against Captain B should be formally investigated under the auspices of the Civil Service Disciplinary Code.

The allegations were put to Captain B in the course of an investigation conducted by the then Head of Investigations Division who had also undergone training as an investigator for the purposes of the Civil Service Disciplinary Code. The Investigator also interviewed the Complainant as part of this process.

The Complainant was out of work on certified sick leave from 24 June 2022 until 8 July 2022.

The Complainant’s complaint was processed expeditiously by the Respondent while at the same time ensuring that all fair procedures were adhered to particularly where such serious allegations were being made against Captain B. On 29 September 2022, Mr Clancy wrote to the Complainant to advise him that the investigation had concluded that there was no evidence found to corroborate the details of his allegations as particularised in his signed statement of 5 July 2022.

One aspect of the complaint was upheld against Captain B regarding the allegation of using a work vehicle to bring a relative to school. This was dealt with internally as a verbal warning given the relatively minor nature of this finding.

While the majority of the complaint was not upheld, it is not the purpose of this proceeding to evaluate the credibility of the allegations made by the Complainant.

In March 2023 Mr C took over the role of Harbourmaster of the RVFHC. He has continued the practice of not assigning any specific GO the responsibility to supervise the small craft harbour for operational reasons. These responsibilities have remained subsumed into the overall responsibilities of the Harbourmaster.

The Complainant filed this Complaint on 21 April 2023.

The Complainant was again out of work on certified sick leave from 3 October 2022 to 1 May 2023.

On 17 May 2023 the Complainant spoke to Mr Tony O’Sullivan on the telephone with a view to returning to work. The Complainant was informed that he could return to work as GO. The Complainant was quite eager to resume his former responsibilities related to supervising the small craft harbour but he was informed by Mr O’Sullivan that this was not possible because those responsibilities were no longer assigned to any of the GOs at the present time.

By letter dated 30 May 2023 the Complainant’s solicitor JOS Solicitors wrote to Mr Clancy wrongly suggesting that the Complainant had been removed from full duties and / or removed from the GO role. The said letter requested reinstatement at his “previous position of employment with full duties.” This letter was entirely misconceived. Save for his period as acting Harbourmaster the Complainant had remained as a GO with full duties. The Complainant had not been demoted or removed from his post and the Respondent had continued to provide him with a full complement of duties in accordance with the terms of his employment.

By reply dated 20 June 2023 Mr Clancy wrote to JOS Solicitors disputing the Complainant’s account of a conversation with Mr O’Sullivan and enclosing a copy of the General Operative Competition Booklet which sets out the responsibilities of a GO which have been assigned to the complainant throughout his tenure as GO.

From 2 May 2023 the Complainant was on an unpaid unauthorised absence from work. The Complainant voluntarily resigned his position on 2 August 2023.

Preliminary objection: the complaint is out of time

In HSE v McDermott [2014] IEHC 331 the High Court (Hogan J) considered section 6(4) of the to the Payment of Wages Act 1991 which at that time stated:-

“A rights commissioner shall not entertain a complaint under this section unless it is presented to him within the period of 6 months beginning on the date of the contravention to which the complaint relates or (in a case where the rights commissioner is satisfied that exceptional circumstances prevented the presentation of the complaint within the period aforesaid) such further period not exceeding 6 months as the rights commissioner considers reasonable.”

In his judgment Hogan J stated:-

“We may next observe that the actual language of the subsection is clear, because it is the words "contravention to which the complaint relates" which are critical. It may be accepted that every distinct and separate breach of the 1991 Act amounts to a "contravention" of that Act. If, for example, an employee is paid monthly and the employer makes unlawful deduction X in respect of salary for every month in a two year period it might be said in the abstract that there have been 24 separate "contraventions" of the 1991 Act during that period.

Yet the relevant statutory language takes us somewhat further, because the key question is the "date of the contravention to which the complaint relates." In other words, time runs for the purposes of the Act not from the date of any particular contravention or even the date of the first contravention, but rather from the date of the contravention "to which the complaint relates." As the EAT pointed out in its ruling on the matter, had the Oireachtas intended that time was to run from the date of the first contravention, it could easily have so provided.

For the purposes of this limitation period, everything turns, accordingly, on the manner in which the complaint is framed by the employee. If, for example, the employer has been unlawfully making deductions for a three year period, then provided that the complaint which has been presented relates to a period of six months beginning "on the date of the contravention to which the complaint relates", the complaint will nonetheless be in time. It follows, therefore, that if an employer has been making deduction X from the monthly salary of the employee since January 2010, a complaint which relates to deductions made from January, 2014 onwards and which is presented to the Rights Commissioner in June, 2014 will still be in time for the purposes of s. 6(4). If, on the other hand, the complaint were to have been framed in a different manner, such that it related to the period from January, 2010 onwards, it would then have been out of time. It may be that when enacting s. 6(4) the Oireachtas did not fully appreciate that everything might turn for the purposes of time on the actual manner in which the particular complaint was actually framed by the employee, but the language of the sub-section really admits of no other conclusion. Nor can it be said that such a conclusion is absurd in any way.”

It is important to emphasise that the effect of this decision is not – as is sometimes wrongly argued – that an overbroad complaint is to be confined to alleged breaches within the previous 6 months only. Rather the effect of this decision is that an overbroad complaint is to be entirely excluded, even if it contains allegations within the previous 6 months unless it is solely confined to that period.

Schedule 2 of the 2014 Act provides that complaints of contraventions of section 12 shall be presented to the WRC in accordance with section 41 of the 2015 Act. Section 41(6) of the 2015 Act provides:-

“Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.”

Section 41(8) provides:-

“(8) An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.”

It will be noted that these sub-sections use identical wording to that referred to in McDermott above (“the date of the contravention to which the complaint relates”).

So, in order to consider whether the Complainant’s complaint is out of time, it must be considered what is that date of the contravention to which the complaint relates. The Complaint form is devoid of any detail and little assistance can be obtained therefrom. The allegation of penalisation by the Complainant is encapsulated by paragraph 40 of the written legal submissions:-

“The Respondent’s actions in isolating the Complainant and refusing reasonable request for transfer amounted to penalisation contrary to the 2014 Act”

The temporal scope of this is clarified in paragraph 21:

“the penalisation to which he was subjected continued from March 2022 up to the termination of his employment in August 2023".

At the adjudication hearing Mr Fahy BL noted that the events the Complainant relies upon took place in excess of 12 months prior to the referral of his claim.

Protected Disclosure

The Complainant invokes the Protected Disclosures Act 2014 (“the 2014 Act”).

Section 5(1) of the Act defines a protected disclosure. Section 5(2) defines “relevant information”.

If the complaint were not out of time, the Respondent would accept for the purposes of this complaint only that the Complainant had made a protected disclosure in or about June or July 2023 when he made allegations of wrongdoing to Mr Clancy.

However, the Respondent rejects the Complainant’s apparent contention that he made a protected disclosure in February 2022.

In Garda Commissioner v Barrett [2023] IECA 112 the Court of Appeal has stated that “informational content” is the “sine qua non” of a protected disclosure. In Baranya v Rosderra Fresh Meats [2021] IESC 77 the Supreme Court (Hogan J, giving the judgment of the Court) stated as follows:-

“…did those words expressly or by necessary implication amount to an allegation tending to show that workplace health and safety was or would be endangered, even if that complaint was personal to him. The allegation must, of course, contain such information – however basic, pithy or concise – which, to use the language of s. 5(2) of the 2014 Act, “tends to show one or more relevant wrongdoings” on the part of the employer: to adopt the words of Sales LJ regarding a parallel provision in the corresponding UK legislation, the disclosure must have “sufficient factual content and specificity” for this purpose: see Kilraine v. Wandsworth LBC [2018] ICR 1850 at 1861, even if it does merely by necessary implication.”

Contrary to the Complainant’s contention, he raised no allegation of wrongdoing in his verbal comments of February 2022. It was an innocuous conversation about budgetary constraints.

Regarding penalisation, section 12 of the Act states as follows:-

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

Section 12(3) provides:-

“Schedule 2 shall have effect in relation to an alleged contravention of subsection (1) ”

Section 3 of the 2014 Act defines penalisation.

Schedule 2 provides as follows in relation to the redress for contraventions of section 12.

Detriment

It is necessary for the Complainant to establish that he has suffered some detriment within the meaning of the 2014 Act.

It is clear from cases such as A Psychiatrist v A Health Service Provider (23 September 2019) ADJ-00017774 that there is a common definition of “detriment” in both health and safety penalisation complaints and protected disclosure penalisation complaints. In that case the Adjudication Officer held that the test for detriment was an objective one, citing English caselaw. Therefore, it is incumbent on the Complainant in this case to establish that his treatment would be viewed as detrimental from the perspective of an ordinary reasonable employer and not whether the Complainant subjectively felt that he was subject to detriment.

It is submitted that the assignment of different responsibilities at different times to the Complainant was an ordinary part of his employment as GO. The assignment of some duties in substitution for former duties does not constitute “detriment,” within the meaning of the act. While the Complainant clearly harbours a subjective sense of grievance against what he perceives as his unfair treatment, this is insufficient to establish detriment.

Furthermore, it is submitted that the investigation into the complaints was carried out fairly and properly and as a result the Complainant could not have suffered any detriment in that regard.

Causation

It is necessary for the Complainant to satisfy the “but for test” as set out in Paul O’Neill v Toni and Guy (Blackrock) Limited [2010] 21 ELR 1. While Toni and Guy related to penalisation under Health, Safety and Welfare at Work Act, it is submitted that the same principles apply.

“It is clear from the language of this section that in order to make out a complaint of penalisation it is necessary for a Complainant to establish that the determent of which he or she complains was imposed “for” having committed one of the acts protected by subsection 3. Thus the detriment giving rise to the complaint must have been incurred because of, or in retaliation for, the Complainant having committed a protected act. This suggested that where there is more than one causal factor in the chain of events leading to the detriment complained of the commission of a protected act must be an operative cause in the sense that “but for” the Complainant having committed the protected act he or she would not have suffered the detriment. This involves a consideration of the motive or reasons which influenced the decision maker in imposing the impugned determent.”

It is clear therefore that there must be a causative link between the detriment alleged to have been suffered by a complainant and the protected disclosure made by them. For example, in the WRC decision of Douglas Bel-Maguire v HSE (2023) ADJ-00035530 & ADJ-00040105 the Adjudication Officer states:-

“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.”

While there are differing views on the nature of the test of causation in similar provisions in the UK, it seems that the “but for test” from Toni & Guy remains applicable in Ireland.

It is submitted that the changes to the Complainant’s responsibilities were part of the ordinary changes associated with new management and not caused or brought about by any protected disclosure.

Indeed, much of the grievances aired by the Complainant in his initial complaint relate to matters that arose prior the any true allegation of wrongdoing. It is clearly the case that those acts of alleged detriment which commenced in March 2022 could not have been caused by a protected disclosure that occurred in June or July 2022.

The prior existence of a grievance also undermines the Complainant’s apparent contention that the protected disclosure caused the detriment.

The Complainant was having interpersonal difficulties with Captain B, prior to his complaint of June – July 2022. This is perhaps an understandable result of the resumption of his former role as GO having acted as Harbourmaster. However, the fact of the prior friction between the Complainant and Captain B undermines any contention that the protected disclosure caused his alleged mistreatment. The Complainant was having a difficult time at work in any event, irrespective of any disclosure. It is submitted that this was caused – not by any protected disclosure – but by the Complainant’s difficulty in adjusting to resuming his role as GO.

Burden of Proof

Quite clearly the Complainant has the ordinary burden of establishing that he actually made a disclosure in February 2022, before any presumptions arise. There is no written record of such disclosure, the Respondent denies that he made any disclosure within the meaning of section 5(8) and it is for him to prove that he did, in accordance with the ordinary civil standard.

While there is a presumption in section 5(8) of the 2014 Act that any particular disclosure, once established, is a protected disclosure, there is no such presumption as regards causation or detriment.

It is submitted therefore that, while a disclosure can be presumed to be a protected disclosure until the contrary is proven, the onus is on the Complainant to establish that:-

·       He has suffered detriment;

·       The detriment that he alleges that he suffered was caused by the protected disclosure made by him.

This much is clear from the decision on Garda Commissioner v Barrett [2023] IECA 112. That case related to a different standard of proof at the interlocutory injunction stage, but the Court stated as follows in relation to the burden of proof at trial:-

“However, it is also important to recognize the limits of the presumption. It is confined to the issue of whether a disclosure is a protected disclosure. It does not extend beyond that issue. Therefore, for example, the presumption does not apply to the question of whether there is a connection between a protected disclosure and an alleged detriment i.e. it is not presumed that there is any such connection between them. The connection must be proved by the applicant in the ordinary way, to the relevant standard of proof.”

Conclusion

The Complainant’s complaint is out of time and the WRC has no jurisdiction to entertain it.

In any event, the Complainant made no allegations of wrongdoing to the Respondent until June 2022 at the earliest. The acts of alleged detriment occurred before making of any protected disclosure by the Complainant and were done for operational reasons without the intent or effect of punishing the Complainant. Thereafter the Complainant suffered no detriment and the investigation was carried out fairly and properly.

For all of the above reasons, the Complainant’s complaint ought to be dismissed in its entirety and it follows that he is not entitled to any compensation.

At the adjudication hearing, Mr Fahy BL said that the Respondent does not accept that the issues raised in February 2022 were a protected disclosure. The clarification of the Complainant’s duties was not in a response to a protected disclosure as no disclosure was made. The Respondent accepted that, despite the fact that the Complainant did not want to proceed with the protected disclosure route and therefore waived his rights, that the matters raised in June 2022 amounted to a protected disclosure.

Mr Fahy BL further said that the Complainant’s role was that of a GO. He was assigned from time to time the Marina Superintendent’s role; he was not promoted.

Mr Fahy BL asserted that it would have to be concluded that the Respondent deliberately set out to penalise the Complainant for making a protected disclosure. However, Captain B did not harbour any animosity, he did not set out to punish the Complainant. If it’s found that Mr Clancy failed to implement the Protected Disclosure Policy, it was done innocently but mistakenly, not in retaliation for making a protected disclosure.

Summary of direct evidence and cross-examination of Mr Tony O’Sullivan – Assistant Chief Engineer

Mr O’Sullivan emphasised the significance of the job title “General Operative”. He said that it is a particular grade that is common to many Departments, and it is a very distinctive grade within the civil service.

Mr O’Sullivan said that the Complainant’s job specification (including point (i)) was customised to the harbour GO’s duties. The phrase “may be allocated” emphasises that a GO would be doing this kind of work, it specifically brings marina in to focus which was not the case in previous booklets. Mr O’Sullivan said that work of a GO is varied, there is a variety of duties, but the job remains a GO.

In cross-examination it was put to Mr O’Sullivan that the documents exhibited identified the Complainant as a Marina Superintendent. Mr O’Sullivan did not doubt that those were genuine documents.

It was put to Mr O’Sullivan that while he said that duties could change from day to day, the documents are produced on a daily basis, he agreed.  It was put to the witness that the position of Marina Superintendent was not given on a day-to-day basis, it was held for a period. Mr O’Sullivan said that there was no doubt that the Complainant was hired as a GO but over the years he was assigned duties of the Marina Superintendent.

It was put to the witness that the suggestion that one could come on Wednesday and meet a different Marina Superintendent that they met on Tuesday is incorrect. Mr O’Sullivan said that the role is changeable. He would expect that the Harbourmaster would do it for a good reason.

In redress, Mr O’Sullivan said that there were consultations with the engineers as to whether there was a need for Marina Superintendent role. There was a management meeting at which it was decided that there was no need at this stage, maybe in the future. If this was the case, a business case would have to be made, duties for the grade would have to be established, then a competition for the specific role would have to be held and a successful candidate would be appointed. At the time the grade did not exist.

Summary of direct evidence and cross-examination of Captain B, Harbourmaster

Captain B outlined his career and experience. He said that he became the Harbourmaster in March 2021 in Rossaveel, he then transferred elsewhere. He said that it was the first time he did a 9-5 job, he was getting used to the civil service.

Captain B said that is relationship with the Complainant was fine all along. He said that he initially understood that the Complainant’s role was a Superintendent of the Small Craft Harbour. While the Complainant was referred to as a Marina Superintendent, Captain B said that he kept correcting that. He said that the Complainant managed quite well. As he acted up in the Harbourmaster role, Captain B leaned on him in some respects. There were different processes, terminology, access to the system, so he was getting assistance from the Complainant and others.

With regard to the business cards, Captain B said that when he was asked to get some for himself, he asked the Complainant if he would like some. Captain B had no issue with putting “Marina Superintendent’ on the card, as the Complainant was giving them to the marina users.

Captain B said that the Complainant shared an office with an engineer, he also had an office in the marina.

Captain B said that the Complainant told him that there would be a competition to give him the Superintendent job and Captain B made representations on his behalf but he had no latitude to promote or demote someone.

Captain B said that he asked Dingle Harbourmaster about the matter and was told that there is a GO who also does marina maintenance, there was a similar set up in Castletownbere. There was an engineer, a foreman, one GO, the Complainant and the Harbourmaster. The Complainant was most capable GO to do computer recording etc.

Captain B said that he considers himself a manager of the port, but given the small number of staff, he wouldn’t redesignate people around. He said that in October/ November 2021, one GO made comments in passing about the Complainant’s role. Winter is a busy period and Captain B did not want any friction. In February 2022 another GO joined but one GO was out sick. Captain B said that he spoke with the Grade 1 Engineer about it. The Complainant was to continue in the small craft harbour but they wanted him to do more of what the other GOs did, more application from him around the harbour was needed. Captain B said that he had the impression that the Complainant would not like that. He considered himself a Marina Superintendent and Captain B said that he could not fault him for that.

Regarding the conversation in February 2022, Captain B said that the Complainant told him “you need to be careful what overtime you are putting” because another Harbourmaster had an inquiry. Captain B said that he had no issues with overtime but as it was brough to his attention, he contacted the other Harbourmaster to seek clarity. He denied that there were raised voices during the conversation. He said that he did not understand the Complaint accusing him of anything inappropriate. Captain B said that he had no issue with overtime, it was easy to explain. There was an audit and there were no issues. The Complainant did not refer to metal breaking etc. at the time. He mentioned the scrapped vessel, he said that there were issues with fees (during the previous Harbourmaster’s tenure). Captain B said that he went to the owner and asked what his plan was, that was it.

Captain B said that he had no feelings about this conversation, he took the Complainant’s advice on many things, it was the same with regard to the overtime.

Regarding events in March 2022, Captain B said that the Complainant was asked to take on more GO’s duties, he defended himself, he said that he was in the small craft harbour and did GO’s duties. The Complainant took issue with the use of vehicles. One was assigned to the Harbourmaster, the other to the foreman. The Complainant had an issue with that. The Complainant did not refer to the meeting in February 2022 at this meeting.

Captain B said that the events in March were not to punish the Complainant for a protected disclosure made in February 2022. Captain B denied that. He said that he hadn’t intended to stay in Rossaveel much longer. He was asked to have a conversation with the Complainant before a new Harbourmaster took over. As it happened, Captain B stayed there for another eight months. He said he had no ill will. A new Harbourmaster could come and decide differently.

Captain B said that after March 2022 the relationship soured. He thought that the Complainant stopped going to the canteen, they used to have a coffee and a chat together in the mornings. Captain B said that, to be fair, he probably should have made more effort, he knew the Complainant did not like this. He added that this did not change after the February 2022 meeting but after the March one.

Captain B said that he made a suggestion to the Complainant and the Grade 1 Engineer to meet again in a month to discuss. He went to the Complainant to say that the Grade 1 Engineer would be there but the Complainant said that there was no use talking to him as he had talked to the Chief Engineer.

Captain B said that the first time he heard of the allegations was after he got a letter from HR. The allegations were investigated and he was exonerated except for driving a government vehicle with a non-government person in it. Captain B said he had no concerns as he had nothing to answer.

Captain B said that the investigator investigated him, the Complainant, all paperwork. He said that it was a nerve wrecking experience, it was the first time he was investigated. He said that he did not have any animosity towards the Complainant. He knew that the Complainant was the best to do these duties. He did not want to make life difficult for the new Harbourmaster. He needed the Complainant to be around the harbour. He said that the Complainant did not make a protected disclosure to him and he did not penalise him.

Regarding the wrong rates charged and allegedly blaming the Complainant, Captain B said that his email was a response to an email from one of the accountants. He was informed of an issue, it was investigated, it was not an accusation, it was a mistake.

With regard to the matter of the changed lock and freezing out allegation, Captain B explained that there were 2 keys to the container, the Complainant had one and he had another one. The Complainant once forgot his and took the Harbourmaster’s one. On the day in question, Captain B needed to get to the office to get harbour documents, there was no key, but there was a locksmith on site (one of the contractors) so the lock was changed.

In cross-examination, Captain B agreed that the document referring to the Complainant as the Marina Superintendent were genuine and created by the Respondent. He agreed that the PMDS made a reference to the Marina Superintendent.

Captain B confirmed that he did not have latitude to promote or demote someone. He could designate tasks but not roles. He said that he had no intention to remove the Complainant from the small craft harbour, he was not changing the Complainant’s role. It was discussed that the Complainant had to do his GO role as well. The Complainant’s presence was needed around the harbour. He felt that the Grade 1 Engineer should be present at this conversation. It was put to Captain B that he wanted the Grade 1 Engineer present because he was about to make a significant intervention.

Captain B was not sure why the signage was changed but he believed that the Complainant made the signage himself. He said that the container was in the area that was undergoing work and had to be moved.

Regarding the PMDS, Captain B said that the Complainant could have requested a meeting. If an employee has any issue with what he put on the PMDS, they can come back to him. It was put to the witness that the Complainant’s PMDS was a “glowing report”. If other GOs had issues with him, it was not reflected.

Regarding the meeting on 3 February 2022, Captain B said that the Complaint told hm to be careful how much overtime he put on the overtime sheet and that another Harbour Master was audited. Captain B did not feel that there was any issue or wrongdoing. He took it on board as advice from someone who had been in this position before. He said that he called the other Harbourmaster about something else and inquired about the overtime matter. Captain B did not see the text of 11 February 2022 as an accusation of any wrongdoing. Captain B denied that the March events were in response to the issues raised. Captain B said that he wanted to have the duties clarified and the new Harbourmaster would do what was appropriate for them to run the harbour. He said that he did not treat the Complainant any differently.

Captain B said that some signage was changed at the entrance and that electricity was cut because of engineering works. The Complainant was not deprived a vehicle, he did not have a vehicle, but he could use one of the vehicles from the harbour.

Captain B repeated that him referring to a GO in his email regarding fees was not to undermine the Complainant, he did not make accusations.

Regarding the Complainant’s own vessel fees, Captain B said that he reviewed all the vessels and fees. The Complainant could have rung and said that there was an agreement in place, he did not know that staff were berthing vessels at no charge.

Captain B disputed that the Complainant did not take fees and he said that the Complainant would have issued emails to people whose fees were due, he would take the payment and clerical staff would issue an invoice.

In redress , Captain B said that he assumed the Complainant’s raising the overtime issue was an observation. He also thought that the email of 25 May 2022 was not a complaint of wrongdoing.

Summary of direct evidence and cross-examination of Mr Noel Clancy, Chief Engineer

Mr Clancy outlined his career and experience.

He said that he was telephoned by the Complainant on a Friday afternoon in June 2022. The Complainant wanted to meet to discuss the proposal to move the small craft harbour office. Mr Clancy said that he explained to the Complainant that it was a short notice and he was going on leave. They agreed to defer the issues until 23 June. Mr Clancy said that he knew from the call that there was friction between the Complainant and the Harbourmaster. He expected to discuss a HR dispute and come up with a resolution.

Mr Clancy said that he arrived at the harbour on 23 June 2022 at around 10.30am. He went to meet the Harbourmaster and the Grade 1 Engineer. He wanted to get some sense of what was wrong from the Harbourmaster’s and the area manager’s perspective. He spent approx. 1 hour with them. It was explained to him that the Complainant was upset over how things were in the harbour. He was told that after the March meeting, while the Complainant occupied the role of the Marina Superintendent, they wanted him to operate as a GO in the harbour area but they met with resistance.

Mr Clancy said that his plan was to meet with the Complainant and explain to him that the role, while it existed, it was not a job. He was needed to do the GO job more. He said that he discussed that with the Complainant who said that whatever he would be asked to do around the harbour, he would do it. The Complainant said that he had more to discuss. He went briefly through the allegations which were new to Mr Clancy. Mr Clancy said that he asked for a few minutes, he left the car and rang his superior. He was advised to have the allegations in writing. Mr Clancy confirmed that the typed notes exhibited at the hearing reflected what was in his notes that he took in the car. He sent the notes to the Complainant to have a look in case he missed anything. It was fair recollection of their meeting and the Complainant signed off the notes. Mr Clancy confirmed that the Complainant referred to the overtime matter as a “possible error” that he raised with the Harbourmaster. Mr Clancy said that he had no recollection of the Complainant mentioning a wrongdoing or discussing any previous wrongdoing.

Mr Clancy said that he was shocked. He said that the Respondent runs harbours in trust with the Harbourmasters so any accusations are shocking, he was surprised.

Mr Clancy said that he spoke with his senior manager. At the time he did not consider the matter as a protected disclosure. A decision was made, on advice from HR, to take the disciplinary route. He said that he contacted the Complainant to ask if he wanted to go the protected disclosure route, and the Complainant did not want to do so. The Complainant wanted the Harbourmaster to face up the allegations at a meeting. Mr Clancy said that he felt that the accusations were very serious and merited a proper investigation.

Mr Clancy said that the Internal Investigation Unit are experts in this type of investigations. A unit is appointed by HR, carries out an investigation and reports back to HR, himself and the accused. 

Mr Clancy said that the Complainant’s solicitor’s letter of 23 November 2022 was the first time when a protected disclosure emerged. He said that in his reply he stated that the Complainant was “fully aware” of the investigation. He said that the investigation was carried out under the auspices of the Civil Service Disciplinary Code so the accused and those with specific interest would get the report. He said that he offered mediation in the context of trying to establish a proper working relationship. He said that the request was repeated (a letter dated 12 January 2023) and his reasoning remained the same, the report was confidential. It was put to Mr Clancy that the Complainant alleged that this response in itself is a form of penalisation. Mr Clancy said that it certainly never intended to be penalisation.

In cross-examination, Mr Clancy confirmed that on 23 June 2022 he was told about the prioritisation of the roles. He presumed it was the area manager and the Harbourmaster who decided on that. He did not ask or know why. He presumed it was made for a legitimate reason. He said that he did not know about any previous issues. His understanding was that it was decided for operational reasons. Mr Clancy said that he was not told at the time that the decision to change the Complainant’s duties was put on hold. Mr Clancy said that the Complainant had said at the meeting that he would do whatever he is asked to do.

Mr Clancy was asked if the Complainant’s allegations regarding the treatment he endured which were included in the notes of the meeting of 23 June 2022 were ever investigated. Mr Clancy said that he could not say if they were. It was put to Mr Clancy that the Complainant what the Complainant was saying was that he was penalised. Mr Clancy said that he would not be in a position to know. The Complainant wanted to face the Captain and Mr Clancy left it with HR. Mr Clancy said that the original version of his notes did not include the alleged penalisation part, the Complainant included it afterwards. He said that he did not dispute it then and he would not dispute it now though. He said that the Complainant’s big issue were the accusations made against the Harbourmaster. He said that he made offers of support in his letter to the Complainant’s solicitor.

Mr Clancy confirmed that a colleague in HR asked if the Complainant wanted to proceed with the protected disclosure. Mr Clancy then asked the Complainant who said that he did not. It was put to Mr Clancy that the Complainant probably did not know what a protected disclosure was. Mr Clancy replied that probably no more what he knew at the time. The witness was referred to the Respondent’s Protected Disclosure Policy and Procedure and was asked if the protected disclosure route was not more appropriate. He replied that it was a matter of opinion.

Mr Clean confirmed that he shared the Complainant’s solicitor’s letter of 23 November 2022 with HR but he had no indication as to whether the penalisation alleged in the letter was investigated.

The issue for me to determine is whether the Complainant made a protected disclosure as defined by the Act and whether he was penalised for doing so.  

The Complainant alleges that he suffered persistent and ongoing adverse treatment following the referral of two separate protected disclosures in February 2022 and in June 2022.

In denying these allegations, the Respondent submitted that the matters raised by the Complainant in February 2022 did not constitute a protected disclosure within the meaning of the Act. The Respondent accepted that the matters raised on 23 June 2023 constitute protected disclosure, albeit at the time it was dealt with as a disciplinary matter. However, it was submitted that the Complainant did not suffer any form of adverse treatment of any description in the course of his employment as a result of making the disclosure.

Protected Disclosures Act

The entire Act came into operation on 15 July 2014 (Protected Disclosures Act 2014 (Commencement) Order 2014 (S.I. No. 327 of 2014). The amendments effected by the Protected Disclosures (Amendment) Act 2022 came into operation on 1 January 2023 (S.I. No. 510 of 2022.)

Schedule 7 of the Act, as amended stipulates, inter alia:

‘2.

Subject as provided for therein, section 12 (amended by section 21 of the Act of 2022) and Schedule 2 (amended by section 25 of the Act of 2022) shall apply where a worker within the meaning of section 3 (being that section in the terms as it stood before the commencement of section 4 (a)(iii) of the Act of 2022) who is or was an employee—

(a) made a protected disclosure within the meaning of section 5 (being that section in the terms as it stood before the commencement of section 6 of the Act of 2022) before the date of the passing of the Act of 2022, and

(b) was penalised after the date of the passing of the Act of 2022 for having made such a disclosure.

6.

Subject as provided for therein, section 12 (amended by section 21 of the Act of 2022) and Schedule 2 (amended by section 25 of the Act of 2022) shall apply where—

(a) before the date of the passing of the Act of 2022, a worker within the meaning of section 3 (being that section in the terms as it stood before the commencement of section 4 (a)(iii) of the Act of 2022) who is or was an employee—

(i) made a protected disclosure within the meaning of section 5 (being that section in the terms as it stood before the commencement of section 6 of the Act of 2022), and

(ii) was penalised for having made such a disclosure, and

(b) proceedings under section 12 (amended by section 21 of the Act of 2022) are initiated after the commencement of the said section 21.’

Time limits

The Respondent contended that the judgment in HSE v McDermott [2014] IEHC 331 requires that the Adjudication Officer examine the complaint as framed by the Complainant. The Respondent argued that, having done so, and in line with the judgment in, the Complainant’s claim should be found out of time in its entirety.

The Complainant argued that the WRC has jurisdiction to investigate any alleged penalisation that occurred within six months from the date of the referral of the complaint and, on extension, within 12 months.

It has to be noted that HSE v McDermott addressed cognisable periods in claims under the Payment of Wages Act 1991 not the Protected Disclosures Act. It was a specific judgment regarding a specific piece of legislation which is different in its origin, nature, and intent to the Protected Disclosures Act. There is no payment of wages complaint encompassed in this case. The question in this case is whether there has been a contravention of the Protected Disclosures Act.

The time limits are prescribed by section 41 of the Workplace Relations Act, 2015 as follows:

‘(6) Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.’

Subsection 8 stipulates that:

‘(8) An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.’

It is for the Complainant to establish that there is reasonable cause for the delay in presenting a claim under the Act to the Director General of the WRC. The general principles which apply are that something must be advanced which will both explain and excuse the delay. 

The established test for deciding if an extension of time should be granted for ‘reasonable cause’ is set out in the Labour Court determination in the case of Cementation Skanska (Formerly Kvaerner Cementation) Limited v Carroll DWT0338 and is summarised in Salesforce.com v Alli Leech EDA1615 wherein the Labour Court stated:

‘The established test for deciding if an extension should be granted for reasonable cause shown is that formulated by this Court in Labour Court Determination DWT0338 Cementation Skanska (Formerly Kvaerner Cementation) v Carroll. Here the test was set out in the following terms: -

“It is the Court's view that in considering if reasonable cause exists, it is for the claimant to show that there are reasons which both explain the delay and afford an excuse for the delay. The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd. In the context in which the expression reasonable cause appears in the statute it suggests an objective standard, but it must be applied to the facts and circumstances known to the claimant at the material time. The claimant’s failure to present the claim within the six-month time limit must have been due to the reasonable cause relied upon. Hence there must be a causal link between the circumstances cited and the delay and the claimant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would have initiated the claim in time.”

In that case, and in subsequent cases in which this question arose, the Court adopted an approach analogous to that taken by the Superior Courts in considering whether time should enlarged for ‘good reason’ in judicial review proceedings pursuant to Order 84, Rule 21 of the Rules of the Superior Courts 1986. That approach was held to be correct by the High Court in Minister for Finance v CPSU & Ors [2007] 18 ELR 36.

The test formulated in Cementation Skanska (Formerly Kvaerner Cementation) v Carroll draws heavily on the decision of the High Court in Donal O’Donnell and Catherine O’Donnell v Dun Laoghaire Corporation [1991] ILRM 30. Here Costello J. (as he then was) stated as follows:

“The phrase ‘good reasons’ is one of wide import which it would be futile to attempt to define precisely. However, in considering whether or not there are good reasons for extending the time I think it is clear that the test must be an objective one and the court should not extend the time merely because an aggrieved plaintiff believed that he or she was justified in delaying the institution of proceedings. What the plaintiff has to show (and I think the onus under O. 84 r. 21 is on the plaintiff) is that there are reasons which both explain the delay and afford a justifiable excuse for the delay.”

In Cementation Skanska, the Court further held that:

‘The length of the delay should be taken into account. A short delay may require only a slight explanation whereas a long delay may require more cogent reasons.’

In the more recent matter of Leon Kinsella -v- Anson Friend DWT209, the Labour Court described the test to establish reasonable cause in the following terms:

‘It [is] clear from the authorities that the test places the onus on the applicant for an extension of time to identify the reason for the delay and to establish that the reason relied upon provides a justifiable excuse for the actual delay. Secondly, the onus is on the applicant to establish a causal connection between the reason proffered for the delay and his or her failure to present the complaint in time. Thirdly, the Court must be satisfied, as a matter of probability, that the complaint would have been presented in time were it not for the intervention of the factors relied upon as constituting reasonable cause. It is the actual delay that must be explained and justified. Hence, if the factors relied upon to explain the delay ceased to operate before the complaint was presented, that may undermine a claim that those factors were the actual cause of the delay. Finally, while the established test imposes a relatively low threshold of reasonableness on an applicant, there is some limitation on the range of issues which can be taken into account.”

The Complainant applied for an extension of the time limit in the within case on the basis that the Complainant tried to resolve the matter internally. It was argued that it is a public policy matter not to penalise a complainant for attempting to resolve the matter internally.

In Dublin City Council v Laurence A. Skelly DWT 212 the Labour Court held as follows:

‘This Court has consistently held that a complainant’s decision to delay referring a statutory complaint to the Workplace Relations Commission beyond the six-month time-limit provided for generally in section 41 of the Workplace Relations Act (and in comparable provisions in other individual employment enactments) for the purpose of exhausting an alternative means of resolving their dispute does not constitute reasonable cause for the delay. One such decision in which the Court considered this matter is Business Mobile Security Services Limited T/A Seneca Limited T/A John McEvoy EDA1621. The Complainant/Appellant in that case had sought to apply for an extension of time on the basis that he had attempted to resolve his dispute through the Respondent’s established internal procedures. The Court held that the Complainant had not thereby established reasonable cause for his delay:

“The Court finds that the issues that arose in the course of those meetings were in the nature of industrial relations grievances that contained no indication that a complaint under the Act was either imminent or in contemplation. They amounted to an alternative way of resolving the issues in dispute and did not form part of a procedure that acted as a prelude to commencing a complaint under the Act. Instead the Complainant decided to forego the option of proceeding under the Act and instead chose to try to settle the matters in dispute through other means. When that did not work out to his satisfaction he then sought to rely on his choice to justify the delay in bring proceedings under the Act.’

InTesco Ireland Limited Tesco Express v Ali Raza Khan UDD1965 the Court held:

“Having examined the matter the Court does not accept that the processing of an internal grievance can be considered as a cogent reason which prevented the lodging of a complaint under the Acts in time. The Court is of the view that the Complainant cannot circumvent the time limits set out in the Acts by seeking to rely on an internal procedure that did not prevent him from bringing his complaint within the statutory time limit. The Court addressed this issue in Brothers of Charity Services Galway v Kieran O’Toole[EDA 177] where it held:-

‘The Court cannot accept that deploying the Respondent’s internal procedures operated to prevent the Complainant from initiating the within complaints within the statutory time limit provided under the Acts’.”

In line with the above, I do not accept that the Complainant’s desire to resolve the matter internally constitutes reasonable grounds why it was not presented in time.

I also note that the Complainant’s evidence was that he engaged with his Union representative in or around May 2022. From the email furnished it seems that the Complainant’s concerns related to how to protect his role. The was no indication that the Complainant contemplated a referral to the WRC. The Complainant also consulted with a solicitor firm in the summer or possibly in September 2022. The Complainant’s solicitor told the hearing that they were formally on record in October 2022. I note that, even at that juncture, the correspondence from the Complainant’s solicitor had no indication that the Complainant contemplated a referral of his claim to the WRC, rather it referred to necessary steps “including but not limited to an application to the High Court to protect his constitutional and contractual employment rights.”

Having regard to the foregoing, I find that the Complainant has failed to demonstrate “reasonable cause” as required by the Act. I decide that I would only consider evidence on the allegations of penalisation in the cognisable period, namely from 22 October 2022 to 21 April 2023.

Burden of proof

The 2022 Act amends the burden of proof in penalisation and detriment claims to provide that in any proceedings for penalisation or detriment, it will be deemed that they were as a result a protected disclosure being made, unless the employer or person whom it is alleged to have caused the damage proves that the act or omission concerned was based on ‘duly justified grounds’.

Section 12(7)(C) of the Act provides that:

(7C) In any proceedings by an employee under the Workplace Relations Act 2015 in respect of an alleged contravention of subsection (1), the penalisation shall be deemed, for the purposes of this section, to have been as a result of the employee having made a protected disclosure, unless the employer proves that the act or omission concerned was based on duly justified grounds.

In Aidan & Henrietta McGrath Partnership v Anna Monaghan PDD 2/2016 it was held that:

“The Court must first establish that a protected disclosure has been made before it can examine whether a penalisation within the meaning of the Act has occurred.”

Section 5(1) of the Protected Disclosures Act defines a “protected disclosure” as “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, 7B, 8, 9 or 10.”

Section 5(2) defines “relevant information” as that which, “in the reasonable belief of the worker…tends to show one or more relevant wrongdoing” and “it came to the attention of the worker in a work-related context.”

Section 5(3)(b) provides examples of a “relevant wrongdoing” :

(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.

While the parties disagreed as to whether the matters regarding overtime raised in February 2022 constituted protected disclosure, there was no dispute that the Complainant did make a protected disclosure on 23 June 2022. As, by application of the time limits, the Adjudication Officer is permitted to consider any alleged penalisation in the period from 22 October 2022 to 21 April 2023, it is sufficient to consider the matter in the context of the disclosure made on 23 June 2022.  While the Respondent decided at the time to consider the matter as an internal disciplinary issue, at the adjudication hearing the Respondent accepted that the matters raised by the Complainant on 23 June 2023 constituted protected disclosure.

While I note that in the Complainant did not expressly state that the issues raised on 23 June 2022 constituted protected disclosures, in the matter of Clarke v CGI Food Services Limited & Anor. [2020] IEHC 368, Humphries J. held that,

“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”.

Having regard to the foregoing, I find that the complaints raised by the Complainant on 23 June 2022 constitute protected disclosures within the meaning of the Act.

The next matter to be considered is whether the alleged adverse treatment suffered by the Complainant constitutes “penalisation” for the purposes of the Act.

Section 1 of the Act defines “penalisation” as,

“…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 a 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;

Having regard to the list above, it can be seen that the definition of what may constitute “penalisation” is extremely wide and encompasses almost any form of adverse treatment that leads to a detriment. In addition to the matters above, it is noted that the Section refers to these instances “in particular” and may include other forms of adverse treatment that leads to a detriment.

In this regard, the Complainant has alleged that he was subject to a “campaign of undermining and humiliating behaviour” and “ill-treatment”. The Complainant was asked to particularise the alleged penalisation and the following were detailed:

·       The alleged demotion from the Marina Superintendent role in March 2022;

·       The request to return the Respondent’s vehicle in March 2022;

·       The request to move out of the office at the end of May 2022; 

·       The removal of signage in May/June 2022;

·       The denial to share berthing information in June 2022;

·       The alleged accusations with regards to the charges in May 2022;

·       The second attempt to remove the Complainant from the office in June 2022;

·       The failure to progress his complaint in accordance with the relevant internal procedures;

·       The failure to issue the Complainant with the report of the disciplinary investigation regarding the allegations against Captain B;

·       The request to make payments for the Complainant’s private vessel;

·       The issuing of the memo of 19 April 2023 requesting harbour users not to use the Complainant’s work mobile number for any enquiries regarding the Ros an Mhíl Harbour including the Small Craft Harbour.

As per my finding above regarding the time limits, my decision will address the alleged acts of penalisation in the period from 22 October 2022 to 21 April 2023.

With regard to the Complainant’s assertion that the ongoing  failure to investigate his protected disclosure and failure to share the report of the disciplinary investigation constitutes penalisation, I note that the Complainant in his evidence agreed that as the matter was dealt with as a disciplinary one, he was not entitled to receive the report.

In Department of Agriculture, Food and The Marine  v Andrew Conway PDD197 Mr Conway submitted his claim of penalisation under the Act because he had formed the view that his protected disclosure was being ignored by the Respondent and had not been investigated by it. the Labour Court held that:

‘The Court is not in a position to assess the Complainant’s allegations regarding the degree of seriousness or otherwise the Respondent attached to his protected disclosure or the adequacy of the timeframe within which the Respondent investigated them. Quite simply, these are not matters that fall within the Court’s jurisdiction as provided for in the Act. The combined effect of section 12 and Schedule 2 of the Act, in so far as they relate to the Court’s jurisdiction, is to empower the Court, on hearing an appeal from a decision of an Adjudication Officer under the Act, to determine whether or not there has been a breach of section 12(1) of the Act in the case of the particular complainant before it.’

On appeal, in Andrew Conway v The Department of Agriculture, Food and the Marine [2020] IEHC 664, the appellant submitted that the respondent's conduct in ignoring the appellant's protected disclosure, failing to take it seriously, and failing to investigate it constituted “penalisation” for the purposes of section 3(1) of the 2014 Act. He also submitted that the Labour Court, in interpreting the word “penalisation”, had erred in failing to take account of the respondent's compliance with its obligations pursuant to the 2014 Act, with the relevant Code of Practice set out in S.I. No. 464 of 2015, and with the Department of Public Expenditure's published guidelines.

Hyland J. in dismissing the appeal said that this section required that “the detriment must be of a nature to harm or damage the person making the disclosure”. She understood that the claimant was frustrated and annoyed at the Department's 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 or elsewhere”. 

In paras 82- 85 Hyland J held that the Labour Court has no jurisdiction to evaluate the manner in which a protected disclosure has been treated by an organisation. There is no cause of action under the 2014 Act for failure to investigate a protected disclosure in accordance with an existing policy.

Having considered the above, I find that the Respondent’s failure to investigate the protected disclosure and to furnish the Complainant with the outcome report does not constitute a detriment for the purposes of the Act.

In relation to the memo of 19 April 2023 requesting harbour users not to use the mobile number that was assigned to the Complainant for any enquiries regarding the Ros an Mhíl Harbour including the Small Craft Harbour but rather to contact the Harbourmaster, I find that the memo was issued by Captain B’s successor, Captain C who took over the Harbourmaster role in or around March 2023. At the time of the issuing of the memo, the Complainant had been on sick leave for some 6.5 months. The memo does not make any reference to the Complainant or the Complainant’s role but rather requests that any inquiries be directed to the Harbourmaster. In light of the Complainant’s long term absence, I accept that the decision was made for operational reasons. I cannot find sufficient connection between the issuing of the memo and the protected disclosure made by the Complainant in June 2022.

In relation to the Respondent’s request that the Complainant pays fees for his vessel, the Complainant asserts that the practice was that staff were not charged fees and, indeed, he was never charged previously. He contended that he was singled out in that regard. Captain B gave evidence to the effect that he was not aware of the arrangement and that he reviewed the payments of all staff. I note that the issue of non-payment did not arise in 2021 when Captain B was already in situ. If the staff were required to pay the fees, the Complainant would have been due to pay his winter berth fees for 2020/2021. There was nothing put before me to substantiate Captain B’s statement that the payments or non-payment of fees due of any other staff members were reviewed or applied. I note that, while Captain B initially emailed the Complainant on 11 October 2022 (outside the cognisable period), the invoice was dated 1 December 2022 and the Final Reminder threating the Complainant with the commencement of legal proceedings in the event that he fails to pay the fees by 26 April 2023 was dated 19 April 2023.

Having carefully considered the matter, I find that the Complainant was not required to pay and has not paid any fees from 2018 and the issue was only raised by the Respondent in the end 2022. I therefore conclude that the request to pay the fees was as a result of the Complainant raising a protected disclosure.

The purpose of the 2014 Act is described in its long title as being ‘An Act to make provision for and in connection with the protection of persons from the taking of action against them in respect of the making of certain disclosures in the public interest and for connected purposes.’  Protection for workers in that regard is vital, not only to protect those who speak out, but also to encourage others to come forward when wrongdoing is discovered. The Act is intended to act as a deterrent to employers and others from taking retaliatory action against such workers and this is reflected in the level of compensation that I consider just and equitable having regard to all the circumstances.

I declare this complaint to be well founded. I require the Respondent to pay the Complainant compensation of €25,000 which I consider just and equitable having regard to all the circumstances.

Protected disclosure- penalisation-