ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00046193

Parties:

Complaint:

Date of Adjudication Hearing:  06/06/2024

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and Schedule 2 of the Protected Disclosures Act 2014following the referral of the complaint to me by the Director General, I inquired into the complaint  and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Background:

The complaint is that the Respondent penalised the Complainant for having made a protected disclosure.

Summary of Complainant’s Case:

The Complainant was employed as a Bus Driver in April 2013 and subsequently progressed to Acting Inspector in 2017.  He works on the night block and carries out the airport run.  As an acting Inspector, it would be normal that an acting Inspector would apply for a full time Inspector role when such a vacancy would arise.  The Complainant applied for such in 2018 but was not successful.  Subsequently, he and two other colleagues made a protected disclosure about the handling of the vacancy.  The Complainant subsequently referred a complaint to the WRC that he had been penalised for making the protected disclosure and this was upheld.

Despite reassurances from the Respondent that the Complainant would not be blacklisted and would be fully trained on the AVL system, this did not prove to be the case in reality.

The Complainant’s role has been diminished, and he has been provided with little or no acting up opportunities since 2022.

The acting Inspector performs three roles, desk duties, AVL Controller and Inspection.   Since the lodgement of the protected disclosure, the Complainant has not been trained on AVL.  This itself is penalisation.

In 2021, five other colleagues were successful in obtaining acting up positions.  When these were fully trained, the three original acting up Inspectors were not called upon to act – the same three who made protected disclosures.

In the past, the Complainant used to have 50-80 days acting up amounting to €50 nett per day.

Since the outcome of the WRC case (2nd April 2020), the Complainant has acted 18 days in 2021, 1 day in 2022 and none in 2023.

It is contended that there is no justifiable reason why the Complainant has not been trained on AVL and no justifiable reason why the Complainant has not acted up.

The Complainant’s shift pattern was the same before the protected disclosure as after and it is argued that there is nothing prohibiting him from acting up.  His shifts are 6am, 6pm and 8pm.              The acting up shifts are  5.30am, 6.45am and 2pm.

It is submitted that the Complainant was penalised for having made a protected disclosure and has suffered a detriment personally and professionally.

The Complainant gave sworn evidence in which he stated that he could do certain shifts even though he is on the night block.  He referred to certain shifts where he could move from night to day without breaching the 12 hour rest period.  He stated that he was not trained on the Active Vehicle Location System (AVL) and this put him at a disadvantage.  AVL jobs came up and those who are trained on the system obviously had the advantage. 

In cross examination by the Respondent, it was put to him that his protected disclosure case was finished in 2020, yet he still continued to act up.  It was only when he opted to go on nights that the opportunities for acting up reduced. 

Evidence was given on affirmation by a former Driver who stated that the Company was just using the Complainant’s night duty shifts as an excuse and he firmly believed that the Company was penalising the Complainant for having made a protected disclosure. 

In cross examination by the Respondent, he stated that cover could be arranged and he disputed the point that night duty is the sole impediment to the Complainant not being rostered for acting up.

Summary of Respondent’s Case:

The Respondent submits that there is no jurisdiction to entertain the complaint.   The complaint was received on 12th June 2023.  That means the cognisable period is from 13th December 2022 to 12th June 2023. It is argued that the jurisdiction of the Adjudication Officer does not extend to consider alleged acts of penalisation that occurred before the 13th December 2022 and after 12th June 2023.  While it is accepted that at times it is permissible to consider a continuum of penalisation, it is only when an act of penalisation occurred within the cognisable time period that such a continuum can be considered.  The Respondent cites ADJ-00011810, ADJ-00018177 & ADJ-00018186 as reference.

It is submitted that the Complainant cannot show that an act of penalisation occurred within the cognisable period and therefore his claim cannot succeed and should be determined as a preliminary matter not to be well founded.

While it is accepted that Section 12 (7C) of the amended Act alters the onus of proof on whether acts of penalisation are deemed to have been as a result of the employee having made a protected disclosure, the onus of proof rests squarely on the Complainant in this case to show that acts of penalisation actually occurred within the cognisable period.

Section 2 defines penalisation as follows:

““Penalisation” means any direct or indirect act or omission which occurs in a work-related context, is prompted by the making of a report and causes or may cause unjustified detriment to a worker..”

Strikingly, the Complainant has not pointed to any single act of penalisation during the cognisable period.  The furthest he goes is to say that he was not rostered during the cognisable period or on previous dates.  This is not sufficient to discharge the onus of proof.

The Complainant was not rostered for Acting up during the period but this was not because he made a protected disclosure.  The reason why the Complainant was not rostered was his decision to move to a night duty in September 2021.  By moving to this roster he was fully aware that acting up on day duties would be restricted. If he chooses to move off the night roster he will be eligible for day duties as acting inspector. 

He currently is works a 39 hour week as a Driver and is paid €1,023 per week, including basic pay, meal allowances and night allowance payments.

In 2018, the Complainant along with two other employees made a protected disclosure which was not upheld on internal examination.  Subsequently he took his case to WRC claiming penalisation on foot of a meeting with senior management in relation to the conduct of that meeting.  That act of penalisation was upheld (ADJ-00023015 issued 2nd April 2020).   He remained on the Acting Supervisor panel throughout that period and continued to act up when appropriate opportunities arose.  This included 48 acting days in 2018, 72 days in 2019, and 54 in 2020 (of which 27 days were in the period April to December 2020 after the decision issued).  It is the Company’s position that this demonstrates there was no penalisation.  He continued to act for a further 18 days in the period January to August 2021, again demonstrating no penalisation of foot of ADJ-00023015.

An additional 8 Acting Supervisors were added to the panel in 2019, received training in 2020 and were available to take up duties in 2021.  This meant a broader spread of acting opportunities.                In 2021 negotiations were held with the Unions on the introduction of new rosters to improve work/life balance.  On foot of this, the Complainant applied for and was appointed to the ‘night block’.    

The night duty rosters were changed in November 2022 following changes to the core timetable (Route 4 - Waterford – Dublin Airport)  As part of this review, the 02.00 service was withdrawn from the night roster and those duties were re-rostered as 17.00 as a ‘spare’ for the night duty.

If the Complainant was to be accommodated by taking him off the night shift to cover acting duties on days, it would be highly impractical and in any event, SIPTU made clear in an email in 2021 of their opposition where they stated:

“The 02.00 service is part of a night block system.  There is no agreement for the normal spare panel to cover such work. Until agreement is reached this work should be covered by rest day working, volunteers or by the night block itself.”

It is also contended that the Complainant would actually be at a loss if he is taken from night duty to cover day supervisor duties.  He would have to be withdrawn from night duty to cover the day and then would not be able to come on night duty the following night. That means he would be at a loss of two nights pay for one day supervisory pay.

It is for these reasons alone that he did not have opportunities to act as a Supervisor.  There is no causal connection between this situation and the fact that a protected disclosure was lodged in 2018.

HR Manager Ms H gave evidence on affirmation.  She outlined the situation regarding the introduction of the AVL system, cover for resource gaps, and the negotiated changes in the rostering night block which gave rise to the Complainant opting to go on the night rosters.  She stated that by moving to this roster he would be fully aware of the restrictions.   It was not feasible to take him from nights to cover day supervisory duties as this would involve additional costs.  In relation to AVL training, there was little or no training and it ceased in 2020 due to Covid.  It has resumed again and some acting supervisors have been trained. 

Findings and Conclusions:

Preliminary issue

The Respondent raised a preliminary issue in relation to the cognisable period for consideration of the complaint.   It was argued that the protected disclosure was made in 2018, the complaint was submitted on 12th June 2023 therefore time runs from 13th December 2022 to 12th June 2023. 

The period set out in the Workplace Relations Act and applicable to complaints pursuant to the Second Schedule of the Protected Disclosures Act is that of six months, extendable to twelve months with reasonable cause. This requires that there is a contravention within the cognisable period. In claims of penalisation arising from a protected disclosure, the question is whether there is an act or omission that constitutes penalisation within the cognisable period.  

The complaint was referred on 12th June 2023 and ordinarily, the cognisable period is, therefore, the six months before this, i.e. 13th December 2022.  I do not see any reasonable cause to extend the cognisable period beyond the period of six months.

The definition of penalisation in the Act is:

“Penalisation” means any direct or indirect act or omission which occurs in a work-related context, is prompted by the making of a report and causes or may cause unjustified detriment to a worker.

In this instant case, the complaint is that the Respondent penalised the Complainant by omitting him from Acting Supervisory duties in the period 2021 to 2023.  I find that as the Complainant was not rostered for Acting Supervisory duties during the period 13th December 2022 to 12th June 2023 means effectively that his complaint falls within the cognisable period.   I find that the complaint is properly before me for adjudication.

Substantive issue

Section 12 (1) of the Act provides:

“12. (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 3 of the Protected Disclosure Act defines penalisation broadly: “penalisation” means any act or omission that affects a worker to the worker’s detriment, and in particular includes—

(a) suspension, lay-off or dismissal,

(b) demotion or loss of opportunity for 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) unfair treatment,

(f) coercion, intimidation or harassment,

(g) discrimination, disadvantage or unfair treatment,

(h) injury, damage or loss, and

(i) threat of reprisal.”

In assessing the evidence, it is necessary to consider the scope of acts or omissions that may count as penalisation. The complainant must show they have incurred detriment. A complainant must further show that the act or omission causing detriment was ‘but for’ for the making of a protected disclosure.  

In McGrath Partnership v Monaghan PDD162, the Labour Court held: 

“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.” 

As outlined by the Labour Court in McGrath, the ‘but for’ test requires consideration of both the question of motive and the reasons which influenced the decision-maker. The Labour Court also acknowledged that there may be more than one cause to the employer’s act and the test is whether penalisation was an operative cause.  

As set out above, the cognisable period for these complaints is 13th December 2022 to 12th June 2023.  

The history of the protected disclosure and alleged acts or omissions were outlined by the Complainant in detailed evidence.  The essential complaints of penalisation centre around his complaint that the Company omitted him from acting up opportunities.  There is a further complaint that he was not given AVL training.

I note the detailed evidence given by the Respondent’s representatives regarding the history of the situation.  In particular I note that in September 2021 following agreed changes to the roster, the Complainant himself opted to work nights. 

The history shows that the protected disclosure decision ADJ-00023015 issued 2nd April 2020.    The Complainant continued to act up between that date and September 2021 when he opted to go on the night block.  Had the Respondent penalised him it would be reasonable to deduce that he would  not have been rostered in the immediate aftermath of the protected disclosure.  The evidence shows that the rostering issue arose as a result of the Complainant opting for night shifts. 

I note the practical and detailed evidence regarding night shifts, compliance with the Organisation of Working Time Act 1997 and the additional costs which would be entailed by taking the Complainant from night duty to days in order for him to act up as supervisor.  The Complainant made his own free decision to change from days to nights and I cannot accept that it is a simple matter of putting him on days to act up.  It has not been demonstrated that there are opportunities for acting up on nights.  For these reasons I do not believe the Respondent was ill motivated by not rostering him for day acting supervisory duties.  For the same reason, I do not believe the Respondent penalised him by not providing training on AVL.  I find that the commission of the protected act, i.e. the making of a protected disclosure was not the operative cause of the detriment complained of by the Complainant.

It follows that the complainant has not made out that there has been penalisation, as defined in the Protected Disclosures Act. I find, therefore, that the complaint is not well-founded.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

Schedule 2 of the Protected Disclosures Act 2014 (as amended) requires that I make a decision in relation to the complaint.

Based on the evidence and the reasons outlined, I have decided that the complaint is not well founded.

Dated:   12TH of August 2024

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

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