Complainant

Respondent

Parties

Celine  Walsh

Dundalk Institute Of Technology

Representatives

Cait Lynch, IBEC

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00055630-002

21/03/2023

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

CA-00055630-003

21/03/2023

The Complainant stated that when she commenced her employment on 4 November 2013 she was awarded an incorrect incremental credit unlike her named comparator. She also stated that she was penalised by the Respondent following a protected disclosure she made in May 2022.

The Complainant stated that when she commenced her employment in November 2013, she was awarded an incorrect incremental credit. This was unlike her comparator who was awarded the correct credit but who was of a different family status.

She also stated that she was penalised following a protected disclosure she made on 7 and 30 May 2022. Specifically, she stated that she was berated by her line manager on 26 September 2022 for having been on sick leave on 22 September 2022

The Respondent stated that the issue raised by the Complainant around the awarding of the incorrect incremental credit at the start of her employment was resolved in an email from them on 1 December 2015. This letter explained that the Complainant’s entry point was reviewed in conjunction with her submitted evidence of employment. Further to this review she was awarded entry on her original appointment on 4 November 2013 at Point 3 of the Technical scale. She was also paid back monies due to that date because of the difference in salary between Point 3 and Point 1 of the scale, which she had initially started on. The Complainant wrote to the Respondent on 8 December 2015 stating that the letter of 1 December 2015 had addressed all her issues including her salary entry point and the awarding of increments.

The Respondent also disputed that the Complainant made a protected disclosure.

CA-00055630-002:

Preliminary Matter:

The Law

The relevant provisions of the Act are sections 19(1) and (2). They provide as follows:

“(1) It shall be a term of the contract under which A is employed that, subject to this Act, A shall at any time be entitled to the same rate of remuneration for the work which A is employed to do as B who, at that or any other relevant time, is employed to do like work by the same or an associated employer.

(2) In this section “relevant time” in relation to a particular time is any time (including a time before the commencement of this section) during the 3 years which precede, or the 3 years which follow, the particular time.”

The Complainant stated that when she commenced her employment in November 2013 she was awarded an incorrect incremental credit. This was unlike her comparator who was awarded the correct credit but whom was of a different family status. The Complainant stated that she became aware of the difference in 2015 but did not make a complaint to the WRC until 21 March 2023. As more than three years have passed since the alleged contravention, I find that I do not have jurisdiction to hear this complaint.

CA-00055630-003: 

Section 5 of the Act outlines that a protected disclosure “is a disclosure of information where, in the reasonable belief of the worker, it tends to show one or more relevant wrongdoings, and it came to the attention of the worker in connection with the worker’s employment”.

Subsection 3 goes on to outline that: 

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

Section 3 of the 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.”

Even if I accept that the grievance made by the Complainant on 7 and 30 May 2022 constituted a protected disclosure under the Act, she must also show that she incurred detriment because she made the protected disclosure.

It is necessary in the first instance to consider the broad scope of acts or omissions, as set out in the Act above, that may count as detriment. 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.” 

In deciding whether she was penalised, I have carefully considered the evidence given at the hearing and have read the history of her employment, provided to me in advance, which included comprehensive details of the issues she encountered in her employment with the Respondent. Having reviewed same, I note the Complainant was only able to point to one instance of alleged penalisation, namely an allegation of intimidatory behaviour, in the cognisable period which occurred on 26 September 2022 when she stated that she was berated by the Head of Department for having been on sick leave on 22 September 2022. As this alleged intimidatory behaviour was in reaction to the Complainant having been absent which resulted in the classes being cancelled it was not connected with the protected disclosure and cannot therefore constitute penalisation under the Act.

As there was no evidence of any other event in the cognisable period, be it an act or omission, which amounts to penalisation, I find that her complaint is not well founded.

CA-00055630-002:

I find that I do not have jurisdiction to hear this complaint for the reasons set out above.

CA-00055630-003:

I find that the complaint is not well-founded for the reasons set out above.