Complainant

Respondent

Anonymised Parties

{An Employee}

{A Public Sector Body}

Representatives

Paul Macsweeney Forsa

Killian Flood BL Chief State Solicitors Office

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00053017-001

29/09/2022

The Complainant is employed with a State Department.

The Complainant is a whistle-blower who raised a protected disclosure. The disclosure related to payments to individual and a board of a funded agency without proper control. Two documents were withheld which came to light on 30th March 2022. The documents were removed from a file, and the funded agency requested their return. The Complainant had been informed there were no complaints against him. The investigation into his protected disclosure was misled.

The Respondent’s internal audit division completed an investigation and failed to identify the payment or the request, and exonerated senior management. The Complainant requested the internal audit division to re-open the matter following receipt of the information in March 2022, which was refused. The Head of Internal audit is a member of the protected disclosure committee involved in investigating his disclosure. The Complainant believes members of the protected disclosure committee had access to the two withheld documents at the time of the investigation.

After the Complainant made a protected disclosure, the Chief Medical Officer acted on a report which said that he could not meet with members of the public. The Complainant was transferred geographically to another department which is an ongoing cost to him. The Chief Medical Officer recommended the Complainant be precluded from dealing with members of the public while the situation is ongoing. As a result, the Complainant feels precluded from entering internal competitions for promotion as he is restricted in dealing with members of the public. The Complainant contends that the transfer is penalisation under the Act. He is seeking compensation for costs, damage to reputation and loss of promotional opportunity.

The Respondent does not accept the factual matters alleged by the Complainant.

The Complainant is seeking redress pursuant to Schedule 2 of the Criminal Justice Act 2011. The Complainant made a protected disclosure on 30th September 2014. The Complainant had been temporarily transferred to another department in 2014, and was made permanent in 2015. No objection was ever raised by him.

The Respondent says the complaint is statute barred pursuant to Schedule 2 (4) of the Criminal Justice Act 2011. The Complainant previously issued personal injury proceedings regarding his relocation in 2013 which were settled in full in October 2021. The Respondent submits the complaint is subject to the principles of res judicata and the rule in Henderson v. Henderson (1843) 3 Hare 100.

Section 20(1) of the 2011 Act provides:

“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-

(a) for making a disclosure or for giving evidence in relation to such disclosure in any proceedings relating to a relevant offence, or

(b) or giving notice of his or her intention to do so.”

The Respondent submits the onus rests on the Complainant to establish facts showing a prima facie case that he was penalised.

Section 20(3) provides the definition of penalisation does not prevent an employer from

a) ensuring that the business concerned is carried on in an efficient manner, or

(b) taking any action required for economic, technical or organisational reasons.

The Respondent says the transfer of the Complainant was made to accommodate him at that time.  The Complainant agreed to be transferred. It is without merit to state he was penalised in any way as he was having difficulties within the work environment in 2013. Following temporary placements, he was seconded to a Department in 2014. The Respondent says the transfer was effected to provide relief to him.  Any restriction from dealing with the public was subject to his own medical condition.

Schedule 2 of the 2011 Act deals with redress for breaches of section 20. At subparagraph (4), Schedule 2 provides:

Subject to subparagraph (5), a rights commissioner shall not entertain a complaint under this paragraph if it is presented to him or her after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.

Further, subparagraph 5 provides:

Where a delay by an employee in presenting a complaint under this Schedule is due to any misrepresentation by the employer, subparagraph (4) shall be construed as if the reference to the date of the contravention were a reference to the date on which the misrepresentation came to the employee’s notice.

The six-month period may be extended by the Adjudicator, but only for a maximum period of 12 months. Subparagraph 6 provides:

Notwithstanding subparagraph (4), a rights commissioner may entertain a complaint under this paragraph presented to him or her after the expiration of the period referred to in subparagraph (4) (but not later than 6 months after such expiration) if he or she is satisfied that the failure to present the complaint within that period was due to exceptional circumstances.

The complaint should be dismissed as being statute-barred. The alleged contravention occurred in 2014, approximately 9 years ago. The Complainant is well out of time to bring the claim.  The Complainant seeks to rely on new information coming to light in March 2022. This does not assist him as the alleged retaliation for the protected disclosure occurred in 2014.

There is no basis for the assertion that documents were withheld in the course of the investigation. Insofar as it is claimed that the investigation regarding the protected disclosures had been misled (which is strongly denied), this has no bearing whatsoever on the present proceedings or the running of time. The complaint is manifestly statute-barred and should be dismissed.

The complaint should also be dismissed on the basis of Henderson v. Henderson (1843) 3 Hare 100, the doctrine of cause of action estoppel and/or the doctrine of res judicata. The Complainant previously issued personal injuries proceedings in August 2014 seeking damages for bullying and harassment. The Employee sought special damages for loss of earnings in the 2014 proceedings. Paragraph 20 of Schedule 2 states: “The Plaintiff was exposed to further bullying, harassment, intimidation and efforts to undermine his dignity in the workplace while reassigned to temporary work duties at (office) from July 2013 to October 2013 by his supervisor.”…

The Complainant claims the decision to assign him permanently away from an office in 2015 was punishment for the protected disclosure. However, he had already been assigned to another area in 2013 before the protected disclosure was made. However, the Employee chose not to raise these issues in the 2014 proceedings were settled in full and final settlement of all claims in October 2021. It is on this basis that the Employer claims the matter is subject to the rule in Henderson v. Henderson, cause of action estoppel and res judicata.

I have heard and considered the submissions and evidence of the parties in relation to the complaint.

I am anonymising the identity of the parties to the complaint given the sensitive nature of the disclosure made by the Complainant.

The Complainant made a protected disclosure on 30th September 2014.

The Complainant was transferred geographically to another department in 2014 and was made permanent in 2015. He says this is an ongoing cost and he feels precluded from entering competitions for promotion due to the Chief Medical Officers recommendation that he should not deal with members of the public. The Complainant contends that the transfer is penalisation under the Act.

The Respondent says the complaint is statute barred pursuant to Schedule 2 20 (4) of the Criminal Justice Act 2011. The Complainant previously issued personal injury proceedings regarding his relocation in 2013 which were settled in full in October 2021. The Respondent submits the complaint is subject to the principles of res judicata and the rule in Henderson v. Henderson (1843) 3 Hare 100.

The Respondent says the transfer of the Complainant was made to accommodate him at that time.  Following temporary placements, he was seconded to a Department in 2014. There was no objection at the time.  Any restriction from dealing with the public was subject to his own medical condition.

S20 (4) of Schedule 2 of the Criminal Justice Act 2011 provides:

Subject to subparagraph (5), a rights commissioner shall not entertain a complaint under this paragraph if it is presented to him or her after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.

S20 (6) Notwithstanding subparagraph (4), a rights commissioner may entertain a complaint under this paragraph presented to him or her after the expiration of the period referred to in subparagraph (4) (but not later than 6 months after such expiration) if he or she is satisfied that the failure to present the complaint within that period was due to exceptional circumstances.

The Complainant’s complaint relates to alleged penalisation from a transfer occurring in 2014. The complaint was received by the Workplace Relations Commission on 29th September 2022. I do not have jurisdiction to deal with this complaint which is statute-barred.

The complaint is not well founded. It is statute-barred.

No jurisdiction