LCR22991

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Recommendation No's: ADJ-00039173 (CA-00050112-001)

BACKGROUND:

The Worker appealed the Adjudication Officer’s Recommendation to the Labour Court on 29 August 2023 in accordance with Section 13(9) of the Industrial Relations Act, 1969.

A Labour Court hearing took place on 18 June 2024.

DECISION:

This is an appeal by the Worker from a Recommendation of an Adjudication Officer (IR-SC-00000242, dated 21 July 2023) under section 13 of the Industrial Relations Act 1969. Notice of Appeal was received in the Court on 29 August 2023. The Court heard the appeal in Dublin on 18 June 2024.

The Factual Matrix

The Worker is a Sea-Fisheries Protection Officer and has been in the employment of the Sea-Fisheries Protection Authority (‘the Employer’) since 1 January 2007, his employment having transferred on that date from the Department of Communications, Marine and Natural Resources. The Worker is a public servant.

The Worker made a protected disclosure to an external body in 2017. Although the subject matter of the disclosure had been brough to the Employer’s attention in 2017, the Worker did not identify himself as the author the disclosure until 2018. The Employer subsequently commissioned a well-known consultancy firm to carry out a review of the substantive matters alleged in the protected disclosure. This culminated in a report dated June 2021. The recommendations made in that report are currently being addressed by the Employer.

In February 2021, the Worker raised a complaint under the Employer’s Dignity at Work Policy against eight named individuals, as part of a general complaint of corporate bullying by the Employer. Two of the named individuals were members of the Authority. For that reason, the Authority’s Audit and Risk Committee assumed oversight of the investigation into the Worker’s complaint. The initial investigation was conducted by Eversheds Sutherland. It found that the Worker’s allegations were not well-founded. The Worker appealed the outcome and Arthur Cox was appointed to hear the appeal. This process concluded in February 2022 and concluded that “the investigation followed the correct procedures as contained in the Policy and that the investigation conclusion could be reasonably drawn from the evidence considered on the balance of probabilities”.

The Worker’s Submission

The Worker appears to take exception to the fact that the investigation and appeals stages of the process put in train by the Employer in response to his allegations of corporate bullying were conducted respectively by two prominent legal firms in respect of whose engagement he says he was given no input. He described the experience as one where he found himself ‘swimming with sharks’. He is seeking to have the reports produced by the legal firms concerned set aside.

The Worker takes exception to the findings made by Eversheds Sutherland which, he alleges, in a generalised and unreasoned manner, do not conform with the Code of Practice. For example, he includes statements such as the following in his written submission to the Court:

“Evershed [sic] Sutherland have not followed in any way the direction of SI 674/2020 in relation to the role that the investigator plays in a formal legal investigation of workplace bullying ….”.

“Evershed [sic] Sutherland have continually and repeatedly dismissed my claim by writing in the report multiple times ‘This is not bullying’. This is strongly precluded in the direction of the SI.”

The Worker’s written submission to the Court also addresses a range of matters - such as GDPR and FOI requests made by the Worker, the role of an Garda Siochana in the investigation of suspected unlawful disclosure of confidential documents, public procurement and the Official Secrets Act – in respect of which this Court has neither competence nor jurisdiction.

The Employer’s Submission

The Respondent submits that a full and fair investigation was conducted into the allegations raised by the Complainant and that investigation proceeded in accordance both with its own Dignity at Work Policy and with the Code of Practice for Employers and Employees on the Prevention and Resolution of Bullying at Work.

Discussion and Decision

The Worker confirmed to the Court that he agreed the Terms of Reference for the investigation into his allegations with the Employer in advance of the commencement of the investigation process. He also confirmed to the Court that he had ample opportunity to raise any concerns had had in relation to the conduct of the investigation at the appeal stage.

Having carefully considered the Parties’ submissions, the Court finds that the investigation into the Worker’s allegations of bullying were objectively investigated in a fair, professional and comprehensive manner and in full compliance with the provisions of the Code of Practice.

The Recommendation of the Adjudication Officer on the substantive matter only is, therefore, upheld and the appeal fails. However, the other aspects of the Adjudication Officer’s Recommendation are set aside and the Recommendation is varied accordingly.

The Court so decides.

	Signed on behalf of the Labour Court
	Alan Haugh
AR	______________________
20 June 2024	Deputy Chairman

NOTE

Enquiries concerning this Decision should be addressed to Aidan Ralph, Court Secretary.