Complainant

Respondent

Parties

Corporal Anthony O’Donoghue

The Minister for Defence

Representatives

Niall Donohoe

Hugh Guidera BL

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-00053998-001

01/12/2022

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

CA-00056564-001

04/05/2023

The hearing on September 20th opened with Mr Guidera’s submission of July 13th 2023 on behalf of the respondent, in which he raised a preliminary issue.  The complainant’s first complaint was submitted to the WRC on December 1st 2022.  His second complaint, submitted on May 4th 2023, concerns protected disclosures made during 2022.  Mr Guidera argued that the relevant Act for consideration of these complaints is the Protected Disclosures Act 2014 (“the 2014 Act”) before it was amended by the Protected Disclosures (Amendment) Act 2022 (“the 2022 Act”).

In support of the respondent’s position that the complaints are not well founded, Mr Guidera presented three legal arguments:

1.       Relying on the 2017 decision of the WRC in Mr A v A Public Body[2], Mr Guidera argued that the WRC has no jurisdiction to consider a complaint of penalisation under s.12 of the 2014 Act, by a member of the Permanent Defence Forces.

2.       He submitted that the penalisation alleged by the complainant does not meet the definition of penalisation at 3(1) of the 2014 Act.

3.       Finally, Mr Guidera argued that the complainant has not shown that the penalisation he alleges is the result of a protected disclosure. 

In response to the preliminary point concerning the complainant’s entitlement to have his complaints heard under the 2022 Act, Mr Donohoe argued that the respondent has ignored the relevance and direct effect of EU Directive 2019/1937 on the protection of persons who report breaches of EU law.  This EU Directive on Whistleblowing (“the Directive”) was adopted by the European Parliament and the Council on October 23rd 2019 and Member States were required to bring into force the laws, regulations and administrative provisions necessary to comply with the Directive by December 17th 2021.  In Ireland, this occurred on January 1st 2023.  On behalf of the complainant, Mr Donohoe submitted that a disadvantage arises from relying on the 2014 Act, because, prior to the 2022 Act, penalisation does not include the performance appraisal process.  In view of the late transposition by Ireland of the Directive, Mr Donohoe argued that, as a consequence of invoking a provision of EU law, the principle of “direct effect” applies.  This means that a citizen of a member State may invoke their rights under an EU law, independently of the existence or otherwise of a national law.

Concerning the three legal arguments presented by the respondent, Mr Donohoe made the following submissions:

1.        Section 12 of the 2014 Act does not permit the WRC to investigate a complaint of penalisation by a member of the Defence Forces.

Mr Donohoe submitted that the respondent has erred in its argument that, at s.3(1) of the 2014 Act, “an employee” is defined separately from “a worker.”  Mr Donohoe’s position is that there is no distinction in the 2014 Act between a worker and an employee.  He referred to paragraph 6 of Article 21 of the Directive which states that,

“Persons referred to in Article 4 shall have access to remedial measures against retaliation as appropriate, including interim relief pending the resolution of legal proceedings, in accordance with national law.”

2.        The penalisation alleged by the complainant does not meet the definition of penalisation at 3(1) of the 2014 Act.

Mr Donohoe asserted that complainant will give evidence that the alleged penalisation, including unfair treatment, loss of opportunity for promotion, transfer of duties, change of place of work, injury to dignity at work, damage to standing in the workplace and loss of career opportunity are all encompassed by the definition at s.3(1) of the 2014 Act.

3.        The complainant has not shown that the penalisation he alleges is the result of a protected disclosure.

Mr Donohoe referred to paragraph 93 of the Directive, which, he argued, demonstrates that the burden of proving that the complainant was not penalised falls on the respondent:

“Retaliation is likely to be presented as being justified on grounds other than the reporting and it can be very difficult for reporting persons to prove the link between the reporting and the retaliation, whilst the perpetrators of retaliation may have greater power and resources to document the action taken and the reasoning.

“Therefore, once the reporting person demonstrates prima facie that he or she reported breaches or made a public disclosure in accordance with this Directive and suffered a detriment, the burden of proof should shift to the person who took the detrimental action, who should then be required to demonstrate that the action taken was not linked in any way to the reporting or the public disclosure.”

The Protected Disclosures Act 2014 is the “Principal Act” and has been amended by the Protected Disclosures (Amendment) Act 2022.  The preamble to the 2022 Act sets out its purpose as,

An Act to give effect to Directive (EU) 2019/1937 of the European Parliament and of the Council of 23 October 2019 on the protection of persons who report breaches of Union law and for that purpose to amend and extend the Protected Disclosures Act 2014; to provide for the establishment of the Office of the Protected Disclosures Commissioner and to confer functions on it; to amend the Freedom of Information Act 2014, the Ombudsman Act 1980 and the Workplace Relations Act 2015; and to provide for related matters.

The amended legislation is to be cited as “The Protected Disclosures Act 2014,” which, from here on, I will refer to as “the Act.”

Definition of “Employee”

One of the amendments arising from the transposition of the Directive is the significant broadening of the definition of “worker.”  Before considering that definition, I wish to examine the definition of “employee” in the Act.  All the relevant terms are defined in alphabetical order at s.3(1).    “Employee” is stated to have,

…the meaning given by section 1 of the Unfair Dismissals Act 1977 and includes an individual who is deemed to be an employee by virtue of subsection (2)(a). 

Section 1 of the Unfair Dismissals Act 1977 defines an employee as “an individual who has entered into or works under (or, where the employment has ceased, worked under) a contract of employment…”

Under the heading, “Exclusions,” s.2(1) of the Unfair Dismissals Act provides that members of the Defence Forces, members of An Garda Síochána and a person “employed by or under the State who was dismissed by the Government” are excluded from the protection of that Act.

Definition of “Worker”

The definition of “worker” is amended in full by section 4(a)(iii) of the 2022 Act and, compared to the definition in the originating legislation, is now significantly broader: 

"[W]orker" means an individual working in the private or public sector who acquired information on relevant wrongdoings in a work-related context and includes

(a) an individual who is or was an employee,

(b) an individual who entered into or works or worked under any other contract, whether express or implied and (if it is express) whether oral or in writing, whereby the individual undertook to do or perform (whether personally or otherwise) any work or services for another party to the contract for the purposes of that party’s business,

(c) an individual who works or worked for a person in circumstances in which -

(i) the individual is introduced or supplied to do the work by a third person, and

(ii) the terms on which the individual is engaged to do the work are or were in practice substantially determined not by the individual but by the person for whom the individual works or worked, by the third person or by both of them,

(d) an individual who is or was provided with work experience pursuant to a training course or programme or with training for employment (or with both) otherwise than under a contract of employment,

(e) an individual who is or was a shareholder of an undertaking,

(f) an individual who is or was a member of the administrative, management or supervisory body of an undertaking, including non-executive members,

(g) an individual who is or was a volunteer,

(h) an individual who acquires information on a relevant wrongdoing during a recruitment process,

(i) an individual who acquires information on a relevant wrongdoing during pre-contractual negotiations (other than a recruitment process referred to in paragraph (h)), and

(j) an individual who is deemed to be a worker by virtue of subsection (2)(b), and any reference to a worker being employed or to employment shall be construed accordingly. 

Subsection (j) above, signals the intention of the Act, at s.3(2)(b), to define a member of the Permanent Defence Forces as a “worker.”

Identification of a Member of the Defence Forces as a “Worker”

Section 3(2)(a) of the Act brings a member of An Garda Síochána and a civil servant within the definition of “employee.”  However, subsection (2)(b) refers to a member of the Permanent Defence Forces as “a worker:”

(2) For the purposes of this Act -

(a) an individual who is or was -

(i) a member of the Garda Síochána, or

(ii) a civil servant (within the meaning of the Civil Service Regulation Act 1956),

is deemed to be an employee,

(b) an individual who is or was a member of the Permanent Defence Force (within the meaning of the Defence Act 1954) or the Reserve Defence Force (within the meaning of that Act) is deemed to be a worker[.]

Having given them separate definitions, it is apparent that, in this Act, the Oireachtas intended there to be a distinction between the status of a member of An Garda Síochána or a civil servant and that of a member of the Defence Forces.  This distinction was set out in the principal Act and it remains unchanged by the 2022 amendments.

Protection of Employees from Penalisation for Having Made a Protected Disclosure

Section 12(1) of the Act provides as follows:

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.

Schedule 2 of the Act sets out the redress provisions for a contravention of s.12(1) and refers to the power of an adjudication officer to make certain declarations or to award compensation and the power of the Labour Court, on appeal, to vary or set aside a decision of an adjudication officer.

We know from the definition at s.3(1) of the Act that “worker” includes an individual who is or was an employee.  In this context, “worker” is an inclusive term and the Act intends that all employees are considered to be workers.  The terms are not interchangeable however, and there is no provision that an “employee” is or was a “worker.”  That said, the Act, at a new section, 12(7B), sought to broaden the scope of the meaning of “employee:”

In this section and Schedule 2, references to "employee" include a worker referred to in paragraphs (d), (g) and (h) of the definition of "worker" in section 3(1).

The effect of this amendment is to include in the definition of “employee,”

(d)  An individual on work experience or training;

(g)  A volunteer in the company or organisation;

(h)  A person who acquires information about a wrongdoing during a recruitment process.

Subsection (j), under the heading of the definition of “worker,” refers to a member of the Defence Forces.  It is my view that, if, for the purpose of section 12 and Schedule 2, the Oireachtas intended to bring members of the Defence Forces within the definition of “employee,” that intention would have been exercised by including subsection (j) after subsections (d), (g) and (h) of s.12(7B) above.  Based on this omission, I am satisfied that the complainant’s role as a member of the Defence Forces is defined as a “worker,” and, as he is not defined as an employee, he is not entitled to seek redress under Schedule 2 of the Act.

This was the conclusion reached by my colleague, Kevin Baneham, in his decision in September 2017 in Mr A v A Public Body.  Mr Baneham concluded that the redress provision at “section 12 applies only to employees and not to the wider group of workers…”  While this Decision was reached prior to the amendments introduced in 2022, I am satisfied that the amendments have no bearing on the complainant’s status as a “worker” and not as an “employee.” 

I note Mr Donohoe’s reference to paragraph 6 of Article 21 of the Directive and the entitlement of the complainant to have “access to remedial measures against retaliation as appropriate, including interim relief pending the resolution of legal proceedings, in accordance with national law.”  Section 13(1) of the Act provides for redress for penalisation of a “person,” by another person:

(1) If a person causes detriment to another person because the other person or a third person made a protected disclosure, the person to whom the detriment is caused has a right of action in tort against the person by whom the detriment is caused.

As a member of the Defence Forces, and, as a “worker,” the complainant falls within the scope of this section.  As an alternative to pursuing a civil action under the Protected Disclosures Act, s.13(2) recognises the right of members of the Defence Forces to elect to make a complaint under s.114 of the Defence Act 1954 or s.6 of the Ombudsman (Defence Forces) Act 2004.

Conclusion

Section 3(1) of the Act provides that a “worker” includes an “employee.”  Nowhere in the Act is there a provision that the definition of “employee” includes a “worker.”  

Section 3(2B) provides that a member of the Permanent Defence Forces is a “worker.”

Section 12(1) provides that an employer shall not penalise an employee for having made a protected disclosure.  Section 12(3) directs us to Schedule 2, which provides that an employee may bring a complaint of penalisation to the WRC. 

Section 12(7B) brings within the definition of an “employee,” three categories of “worker,” but not members of the Defence Forces.

From my examination of these provisions, I am satisfied that access to the WRC in claims of penalisation is restricted to the category of persons defined at s.3(1) of the Act as “employees,” and including three categories of “worker” identified at s.12(7B), but not including a member of the Defence Forces.  I am further satisfied that the difference in treatment at s.3(2) between (a), members of An Garda Síochána and civil servants on the one hand and, (b), members of the Permanent Defence Forces on the other, and the omission of members of the Defence Forces from any exception at s.12(7B), is conclusive of a provision to exclude members of the Defence Forces from access to the WRC to pursue complaints of penalisation.

I have concluded that, as a member of the Air Corps, which is a branch of the Permanent Defence Forces, the complainant’s role is defined as a “worker” and not an “employee.”  As a worker, he is not entitled to seek redress under Schedule 2 of the Protected Disclosures Act 2014, and therefore, I have no jurisdiction to hear a complaint of penalisation against the respondent.  For this reason, I decide that this complaint is not well founded.

Protected disclosure, definition of “employee” and “worker.”

Complainant

Respondent

Parties

Corporal Anthony O’Donoghue

The Air Corps (the Irish Defence Forces)

Representatives

Niall Donohoe

Hugh Guidera BL

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-00053998-001

01/12/2022

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

CA-00056564-001

04/05/2023

The hearing on September 20th opened with Mr Guidera’s submission of July 13th 2023 on behalf of the respondent, in which he raised a preliminary issue.  The complainant’s first complaint was submitted to the WRC on December 1st 2022.  His second complaint, submitted on May 4th 2023, concerns protected disclosures made during 2022.  Mr Guidera argued that the relevant Act for consideration of these complaints is the Protected Disclosures Act 2014 (“the 2014 Act”) before it was amended by the Protected Disclosures (Amendment) Act 2022 (“the 2022 Act”).

In support of the respondent’s position that the complaints are not well founded, Mr Guidera presented three legal arguments:

1.      Relying on the 2017 decision of the WRC in Mr A v A Public Body[2], Mr Guidera argued that the WRC has no jurisdiction to consider a complaint of penalisation under s.12 of the 2014 Act, by a member of the Permanent Defence Forces.

2.      He submitted that the penalisation alleged by the complainant does not meet the definition of penalisation at 3(1) of the 2014 Act.

3.      Finally, Mr Guidera argued that the complainant has not shown that the penalisation he alleges is the result of a protected disclosure. 

In response to the preliminary point concerning the complainant’s entitlement to have his complaints heard under the 2022 Act, Mr Donohoe argued that the respondent has ignored the relevance and direct effect of EU Directive 2019/1937 on the protection of persons who report breaches of EU law.  This EU Directive on Whistleblowing (“the Directive”) was adopted by the European Parliament and the Council on October 23rd 2019 and Member States were required to bring into force the laws, regulations and administrative provisions necessary to comply with the Directive by December 17th 2021.  In Ireland, this occurred on January 1st 2023.  On behalf of the complainant, Mr Donohoe submitted that a disadvantage arises from relying on the 2014 Act, because, prior to the 2022 Act, penalisation does not include the performance appraisal process.  In view of the late transposition by Ireland of the Directive, Mr Donohoe argued that, as a consequence of invoking a provision of EU law, the principle of “direct effect” applies.  This means that a citizen of a member State may invoke their rights under an EU law, independently of the existence or otherwise of a national law.

Concerning the three legal arguments presented by the respondent, Mr Donohoe made the following submissions:

1.       Section 12 of the 2014 Act does not permit the WRC to investigate a complaint of penalisation by a member of the Defence Forces.

Mr Donohoe submitted that the respondent has erred in its argument that, at s.3(1) of the 2014 Act, “an employee” is defined separately from “a worker.”  Mr Donohoe’s position is that there is no distinction in the 2014 Act between a worker and an employee.  He referred to paragraph 6 of Article 21 of the Directive which states that,

“Persons referred to in Article 4 shall have access to remedial measures against retaliation as appropriate, including interim relief pending the resolution of legal proceedings, in accordance with national law.”

2.       The penalisation alleged by the complainant does not meet the definition of penalisation at 3(1) of the 2014 Act.

Mr Donohoe asserted that complainant will give evidence that the alleged penalisation, including unfair treatment, loss of opportunity for promotion, transfer of duties, change of place of work, injury to dignity at work, damage to standing in the workplace and loss of career opportunity are all encompassed by the definition at s.3(1) of the 2014 Act.

3.       The complainant has not shown that the penalisation he alleges is the result of a protected disclosure.

Mr Donohoe referred to paragraph 93 of the Directive, which, he argued, demonstrates that the burden of proving that the complainant was not penalised falls on the respondent:

“Retaliation is likely to be presented as being justified on grounds other than the reporting and it can be very difficult for reporting persons to prove the link between the reporting and the retaliation, whilst the perpetrators of retaliation may have greater power and resources to document the action taken and the reasoning.

“Therefore, once the reporting person demonstrates prima facie that he or she reported breaches or made a public disclosure in accordance with this Directive and suffered a detriment, the burden of proof should shift to the person who took the detrimental action, who should then be required to demonstrate that the action taken was not linked in any way to the reporting or the public disclosure.”

The Protected Disclosures Act 2014 is the “Principal Act” and has been amended by the Protected Disclosures (Amendment) Act 2022.  The preamble to the 2022 Act sets out its purpose as,

An Act to give effect to Directive (EU) 2019/1937 of the European Parliament and of the Council of 23 October 2019 on the protection of persons who report breaches of Union law and for that purpose to amend and extend the Protected Disclosures Act 2014; to provide for the establishment of the Office of the Protected Disclosures Commissioner and to confer functions on it; to amend the Freedom of Information Act 2014, the Ombudsman Act 1980 and the Workplace Relations Act 2015; and to provide for related matters.

The amended legislation is to be cited as “The Protected Disclosures Act 2014,” which, from here on, I will refer to as “the Act.”

Definition of “Employee”

One of the amendments arising from the transposition of the Directive is the significant broadening of the definition of “worker.”  Before considering that definition, I wish to examine the definition of “employee” in the Act.  All the relevant terms are defined in alphabetical order at s.3(1).    “Employee” is stated to have,

…the meaning given by section 1 of the Unfair Dismissals Act 1977 and includes an individual who is deemed to be an employee by virtue of subsection (2)(a). 

Section 1 of the Unfair Dismissals Act 1977 defines an employee as “an individual who has entered into or works under (or, where the employment has ceased, worked under) a contract of employment…”

Under the heading, “Exclusions,” s.2(1) of the Unfair Dismissals Act provides that members of the Defence Forces, members of An Garda Síochána and a person “employed by or under the State who was dismissed by the Government” are excluded from the protection of that Act.

Definition of “Worker”

The definition of “worker” is amended in full by section 4(a)(iii) of the 2022 Act and, compared to the definition in the originating legislation, is now significantly broader: 

"[W]orker" means an individual working in the private or public sector who acquired information on relevant wrongdoings in a work-related context and includes

(a) an individual who is or was an employee,

(b) an individual who entered into or works or worked under any other contract, whether express or implied and (if it is express) whether oral or in writing, whereby the individual undertook to do or perform (whether personally or otherwise) any work or services for another party to the contract for the purposes of that party’s business,

(c) an individual who works or worked for a person in circumstances in which -

(i) the individual is introduced or supplied to do the work by a third person, and

(ii) the terms on which the individual is engaged to do the work are or were in practice substantially determined not by the individual but by the person for whom the individual works or worked, by the third person or by both of them,

(d) an individual who is or was provided with work experience pursuant to a training course or programme or with training for employment (or with both) otherwise than under a contract of employment,

(e) an individual who is or was a shareholder of an undertaking,

(f) an individual who is or was a member of the administrative, management or supervisory body of an undertaking, including non-executive members,

(g) an individual who is or was a volunteer,

(h) an individual who acquires information on a relevant wrongdoing during a recruitment process,

(i) an individual who acquires information on a relevant wrongdoing during pre-contractual negotiations (other than a recruitment process referred to in paragraph (h)), and

(j) an individual who is deemed to be a worker by virtue of subsection (2)(b), and any reference to a worker being employed or to employment shall be construed accordingly. 

Subsection (j) above, signals the intention of the Act, at s.3(2)(b), to define a member of the Permanent Defence Forces as a “worker.”

Identification of a Member of the Defence Forces as a “Worker”

Section 3(2)(a) of the Act brings a member of An Garda Síochána and a civil servant within the definition of “employee.”  However, subsection (2)(b) refers to a member of the Permanent Defence Forces as “a worker:”

(2) For the purposes of this Act -

(a) an individual who is or was -

(i) a member of the Garda Síochána, or

(ii) a civil servant (within the meaning of the Civil Service Regulation Act 1956),

is deemed to be an employee,

(b) an individual who is or was a member of the Permanent Defence Force (within the meaning of the Defence Act 1954) or the Reserve Defence Force (within the meaning of that Act) is deemed to be a worker[.]

Having given them separate definitions, it is apparent that, in this Act, the Oireachtas intended there to be a distinction between the status of a member of An Garda Síochána or a civil servant and that of a member of the Defence Forces.  This distinction was set out in the principal Act and it remains unchanged by the 2022 amendments.

Protection of Employees from Penalisation for Having Made a Protected Disclosure

Section 12(1) of the Act provides as follows:

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.

Schedule 2 of the Act sets out the redress provisions for a contravention of s.12(1) and refers to the power of an adjudication officer to make certain declarations or to award compensation and the power of the Labour Court, on appeal, to vary or set aside a decision of an adjudication officer.

We know from the definition at s.3(1) of the Act that “worker” includes an individual who is or was an employee.  In this context, “worker” is an inclusive term and the Act intends that all employees are considered to be workers.  The terms are not interchangeable however, and there is no provision that an “employee” is or was a “worker.”  That said, the Act, at a new section, 12(7B), sought to broaden the scope of the meaning of “employee:”

In this section and Schedule 2, references to "employee" include a worker referred to in paragraphs (d), (g) and (h) of the definition of "worker" in section 3(1).

The effect of this amendment is to include in the definition of “employee,”

(d)  An individual on work experience or training;

(g)  A volunteer in the company or organisation;

(h)  A person who acquires information about a wrongdoing during a recruitment process.

Subsection (j), under the heading of the definition of “worker,” refers to a member of the Defence Forces.  It is my view that, if, for the purpose of section 12 and Schedule 2, the Oireachtas intended to bring members of the Defence Forces within the definition of “employee,” that intention would have been exercised by including subsection (j) after subsections (d), (g) and (h) of s.12(7B) above.  Based on this omission, I am satisfied that the complainant’s role as a member of the Defence Forces is defined as a “worker,” and, as he is not defined as an employee, he is not entitled to seek redress under Schedule 2 of the Act.

This was the conclusion reached by my colleague, Kevin Baneham, in his decision in September 2017 in Mr A v A Public Body.  Mr Baneham concluded that the redress provision at “section 12 applies only to employees and not to the wider group of workers…”  While this Decision was reached prior to the amendments introduced in 2022, I am satisfied that the amendments have no bearing on the complainant’s status as a “worker” and not as an “employee.” 

I note Mr Donohoe’s reference to paragraph 6 of Article 21 of the Directive and the entitlement of the complainant to have “access to remedial measures against retaliation as appropriate, including interim relief pending the resolution of legal proceedings, in accordance with national law.”  Section 13(1) of the Act provides for redress for penalisation of a “person,” by another person:

(1) If a person causes detriment to another person because the other person or a third person made a protected disclosure, the person to whom the detriment is caused has a right of action in tort against the person by whom the detriment is caused.

As a member of the Defence Forces, and, as a “worker,” the complainant falls within the scope of this section.  As an alternative to pursuing a civil action under the Protected Disclosures Act, s.13(2) recognises the right of members of the Defence Forces to elect to make a complaint under s.114 of the Defence Act 1954 or s.6 of the Ombudsman (Defence Forces) Act 2004.

Conclusion

Section 3(1) of the Act provides that a “worker” includes an “employee.”  Nowhere in the Act is there a provision that the definition of “employee” includes a “worker.”   

Section 3(2B) provides that a member of the Permanent Defence Forces is a “worker.”

Section 12(1) provides that an employer shall not penalise an employee for having made a protected disclosure.  Section 12(3) directs us to Schedule 2, which provides that an employee may bring a complaint of penalisation to the WRC. 

Section 12(7B) brings within the definition of an “employee,” three categories of “worker,” but not members of the Defence Forces.

From my examination of these provisions, I am satisfied that access to the WRC in claims of penalisation is restricted to the category of persons defined at s.3(1) of the Act as “employees,” and including three categories of “worker” identified at s.12(7B), but not including a member of the Defence Forces.  I am further satisfied that the difference in treatment at s.3(2) between (a), members of An Garda Síochána and civil servants on the one hand and, (b), members of the Permanent Defence Forces on the other, and the omission of members of the Defence Forces from any exception at s.12(7B), is conclusive of a provision to exclude members of the Defence Forces from access to the WRC to pursue complaints of penalisation.

I have concluded that, as a member of the Air Corps, which is a branch of the Permanent Defence Forces, the complainant’s role is defined as a “worker” and not an “employee.”  As a worker, he is not entitled to seek redress under Schedule 2 of the Protected Disclosures Act 2014, and therefore, I have no jurisdiction to hear a complaint of penalisation against the respondent.  For this reason, I decide that this complaint is not well founded.

Protected disclosure, definition of “employee” and “worker.”