PDD241

PD/23/6

 DECISION NO. PDD241

SECTION 44, WORKPLACE RELATIONS ACT 2015

SECTION 12 (2), PROTECTED DISCLOSURES ACT, 2014

PARTIES:

  HEALTH SERVICE EXECUTIVE

AND

 MR CIARAN QUINLAN

DIVISION

   Chairman:  Ms O'Donnell

  Employer Member: Ms Doyle

  Worker Member:  Mr Bell

SUBJECT

Appeal of Adjudication Officer Decision No's: ADJ-00035980 (CA-00047151-001)

 BACKGROUND

 The Worker appealed the Decision of the Adjudication Officer to the Labour Court on 9 June 2023. A Labour Court hearing took place on 4 January 2024. The following is the Determination of the Court.

 DECISION

 This is an appeal by Ciaran Quinlan (Complainant) against decision ADJ-00035980 of an Adjudication Officer in his complaint against his employer Health Services Executive (the Respondent).  The complaint was made pursuant to the Protected Disclosures Act 2014 (the Act). The Adjudication Officer held that complaint fails.

Background

The Complainant commenced employment with the Respondent in September 2001, in what was originally the General Medical Services Payments Board (GMSPB) which was later incorporated into Primary Care Reimbursement Services (PCRS). The Complainant is a grade 8 internal auditor. The Complainant submits that he made a protected disclosure in 2015 and that he was penalised for doing so. The Respondent disputes that he made a protected disclosure and that he was penalised.

 The complaint was lodged with the WRC on 11th November 2021 therefore the cognisable period for the purpose of the Act is 12th May 2021 to 11th November 2021.

 Summary of Complainant’s case

The Complainant submitted that he had made protected disclosures to the former Director General of the HSE in June 2015. The relevant wrongdoings were in line with section 5 (3) and in particular ss(3) (g) of the Act which states  “ that an act or omission by or on behalf of a public body is oppressive, discriminatory, or grossly negligent or constitutes gross mismanagement”. The Complainant submitted that this complaint was in respect of concerns he had relating  “to the undermining of the Code of Governance of the HSE by those holding high office within the Organisation”.

He stated that he was penalised in September 2021, when he was instructed to carry out remote auditing, and by the nature of the audits assigned to him. He believed the work he was assigned was more appropriate to a clerical officer than someone of his standing. He believed the decision to assign work to him in that manner, arose from the protected disclosure he had made in 2015.  The Complainant identified an incident in September 2021 when a more junior member of staff was assigned a task outside of the office. It was his submission that this was evidence of penalisation in circumstances when he was being asked to do remote audits. He pointed to the fact that she was asked to collect documents linked to an audit he was working on. It was his submission that he was penalised contrary to section 12(1) of the Act.

 Summary of Respondent’s case

The Respondent did not dispute that the Complainant had raised issues with them but disputed that they were protected disclosures. The Respondent submitted that there had been no penalisation of the Complainant. The Complainant identified two issues which he believes are penalisation 1) the instruction to do audits remotely in circumstances where he had previously travelled to do the audits and 2) the nature of the audits that he was being assigned. The Respondent submitted that arising from COVID the section where the Complainant worked had to revisit how they worked, and remote audits were introduced in 2020. It is now policy to use remote audits where feasible.  Remote audits removed the need for staff to travel, this applied to all staff and was in no way linked to the Complainant’s protected disclosure. There is currently a mix off on onsite and remote audits depending on the type of audits and the areas being audited.

 In respect of the nature of the audits assigned to the Complainant, that is a matter for the head of the section, but contrary to what the Complainant has stated, clerical officers do not carry out audits.  The Complainant has worked under a number of different Heads of Audit, and there is no link between the work assigned to him and his alleged protected disclosure.

 The applicable law

 Section 5 of the Act states.

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

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

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

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

(3) The following matters are relevant wrongdoings for the purposes of this Act—

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

(b) that a person has failed, is failing or is likely to fail to comply with any legal obligation, other than one arising under the worker's contract of employment or other contract whereby the worker undertakes to do or perform personally any work or services,

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

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

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

(f) that an unlawful or otherwise improper use of funds or resources of a public body, or of other public money, has occurred, is occurring or is likely to occur,

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

(h) that information tending to show any matter falling within any of the preceding paragraphs has been, is being or is likely to be concealed or destroyed.

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

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

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

(7) [Subject to subsection 7A, the motivation] for making a disclosure is irrelevant to whether or not it is a protected disclosure.

[(7A) Where a worker, referred to in subsection (1), makes a disclosure of relevant information in the manner specified by that subsection, and in respect of that disclosure of relevant information it is alleged that the disclosure concerned the unlawful acquisition, use or disclosure of a trade secret (within the meaning of the European Union (Protection of Trade Secrets) Regulations 2018 (S.I. No. 188 of 2018)), such disclosure is a protected disclosure provided that the worker has acted for the purposes of protecting the general public interest.]

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

  S 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.

(2) Subsection (1) does not apply to the dismissal of an employee to whom section 6(2)(ba) of the Unfair Dismissals Act 1977 applies.

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

(4) Subsection (3) does not apply in relation to the penalisation of an employee if the employee is within paragraph (d) of section 2(1) of the Unfair Dismissals Act 1977.

(5) Any person who, on examination authorised under paragraph 3(1) of Schedule 2, wilfully makes any material statement which the person knows to be false or does not believe to be true commits an offence and is liable on summary conviction to a class A fine or imprisonment for a term not exceeding 12 months or both.

(6) ………

Discussion

 The issue for the Court to determine is whether the Complainant made a protected disclosure as defined by the Act and whether he was penalised for doing so. Section 5 (1) of the Act sets out that a protected disclosure is a disclosure of relevant information made by a worker in the manner specified in the Act. Section 5 (8) 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 Court operating off the presumption that it was a protected disclosure looked to see if there was a penalisation of the Complainant contrary to section 12 of the Act, during the cognisable period.

 The Complainant identified what he believed to be two acts of penalisation during the cognisable period, the first being the requirement to do remote audits, which meant that he was confined to the office.  In response to a question from the Court the Complainant accepted that travelling to do audits had ceased in March 2020 with the onset of Covid, and that carrying out audits remotely was introduced at that stage. He accepted that all staff were expected to do remote audits although there are some audits still carried out on site.

The Court finds that the Complainant accepts that remote auditing was introduced as a result of the onset of COVID.  He has failed to establish a causal link between the requirement for him to do remote audits and his presumed protected disclosure in 2015 some six years earlier, therefore this element of his complaint must fail.

 In respect of the second issue raised by the Complainant, the type of audit he is being asked to carry out. The Complainant accepted that he is still doing auditing work and that it is work carried out by his grade. His belief is that it is not suitable to someone of his tenure as an auditor. The Complainant has failed to establish a causal link between the work assigned to him during the cognisable period and his presumed protected disclosure, and therefore his complaint must fail.

For the reasons set out above the Court is satisfied that the Complainant was not penalised for making a protected disclosure. The Complainant’s appeal cannot succeed and is dismissed. The decision of the Adjudication officer is affirmed.

The Court so determines.

Signed on behalf of the Labour Court

NOTE

Enquiries concerning this Decision should be in writing and addressed to Ms Sinéad O'Connor, Court Secretary.