ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00050314
Parties:
| Complainant | Respondent |
Parties | Thomas Power | Department Of Employment Affairs and Social Protection |
Representatives | Union Representative | Bryan MacNamara Chief State Solicitor's Office |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00061810-001 | 27/02/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under Schedule 2 of the Protected Disclosures Act, 2014 | CA-00061810-002 | 26/04/2024 |
Date of Adjudication Hearing: 10/09/2024
Workplace Relations Commission Adjudication Officer: Peter O'Brien
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints
Background:
The Complainant was employed by the Department of Employment Affairs and Social Protection from 1991 to 2014. He submitted a complaint to the WRC in February 2024 that he was not paid expenses due when he left employment and he submitted a complaint in April 2024 alleging a protected disclosure. |
Findings and Conclusions:
A Hearing into the above complaints was held on September 10th 2024. At the Hearing the Respondent objected to the Adjudicator making a decision on the complaints presented as it alleged both complaints were out of time. One complaint, which related to expenses from around 2014 was submitted on February 27th 2024 under the Terms of Employment Information Act. The second complaint relating to an alleged Protected Disclosure was submitted on April 26th 2024. At the Hearing the objections to the complaints being in time were set out by the Respondent and it objected to the costs and time that would be involved in preparing a response to the substantive complaints and they sought a decision on the preliminary matter. The Respondent also submitted that all issues between it and the Complainant were settled in 2021 following a Personal Injury complaint which was initiated in 2014. The Respondent noted that the matter of the expenses had been adjudicated to be statute barred in that dispute by the District Court in July 2023. The Respondent also submitted that a WRC decision on a previous protected disclosure complaint issued in April 2024 under the Criminal Justice Act 2011 regarding the parties noted that the issue was statue barred. Section 41 of the Workplace Relations Act states the following; “(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. | (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.” | At the Hearing, following an oral summary of the issues involved, the Complainant and his Representative were given four weeks by the Adjudicator to make a submission on the out of time issue. No reply was received by the WRC to this request. The WRC also sought to confirm that the Trade Union Representative was still representing the Complainant and no reply was received to that communication. At the Hearing the Complainant had been asked to also make a submission on his Protected disclosure complaint within four weeks but none was received. The Complainant did directly submit correspondence post the Hearing, dated 22/9/2024, which he had submitted to the Department of Employment Affairs and Social Protection Minister and some Dail Deputies containing certain allegations about statements at the Hearing by the Respondent and which he alleged entitled him to have an open ended hold on a WRC Decision being issued on his complaints and he alleged that because certain documents were withheld from him for over 11 years and which related to his transfer from one location to another this prevented him from having a fair Hearing. I also note that correspondence submitted from 2015 from the Department of Social Protection to the Complainant stating certain information sought under FOI by the complainant from 2012 could not be found. The Respondent has written to the WRC on a number of occasions noting the Complainant has not complied with the request of the Adjudicator to make further submissions and sought a decision on the preliminary matter. In his Protected Disclosure complaint the Complainant stated “The Department have released information which it had withheld for 12 years which relates directly to the situation that gave rise to this case. This document acknowledges that I made a Protected Disclosure in 2012 and the submission I made was examined under the provisions of the Act. This retrospective acceptance of a Protected Disclosure and the subsequent refusal to pay my expenses amounts to penalization under the Act.” Having considered the matters and correspondence presented to me, I have concluded that the core issue in both complaints relates to the transfer of the Complainant in 2014 (which he did not agree with) and the expenses issue relating to the transfer at that time. I have concluded that the complaints as presented are an attempt to have the circumstances surrounding the Complainants transfer examined/litigated under another guise and as this transfer took place in 2014 I find that the both complaints are out of time. |
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Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.
I find that both complaints are out of time under Section 41 of the Act. |
Dated: 09-12-2024
Workplace Relations Commission Adjudication Officer: Peter O'Brien
Key Words:
