ADJUDICATION OFFICER DECISION.                                                                          

Adjudication Reference:  ADJ-00043269

Parties:

Complaint:

Date of Adjudication Hearings:  17/07/2023 & 21/02/2024

Workplace Relations Commission Adjudication Officer:  Michael McEntee

Procedure:

In accordance with Section 41 of the Workplace Relations Act and Schedule 2 of the Protected Disclosures Act, 2014 following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.

In deference to the Supreme Court ruling, Zalewski v Ireland and the WRC [2021] IESC 24 on the 6th of April 2021 the Parties were informed in advance that the Hearing would normally be in Public, Testimony under Oath or Affirmation would be required and full cross examination of all witnesses would be provided for.

The required Oath or Affirmation was administered to all witnesses present. The legal perils of committing Perjury was explained to all parties.

No issue regarding confidentiality arose.

Background:

The issue in contention is an allegation by the Complainant, a retired Sergeant in the Aer Corps, that he was Penalised by not having been offered a Retirement Function on leaving service. He also alleged that this arose out of a Protected Disclosure he made in November 2014 and a later unspecified Disclosure in the late 2010-2020 period.

The Complainant’s service began on the 10th August 1984 and ended by retirement on the 19th July 2019.

The rate of pay at the ending of employment was the stated rate for a Sergeant rank in the Aer Corps.

1:        Preliminary Issues

1:1       Late Respondent Submissions and “Inequality of Arms”

At the opening Oral Hearing on the 17/07/2023 the Complainant’s Representative, Mr Donohoe, objected very strongly to the very late submissions of the Respondent Documents, (the morning of the Hearing,) which effectively precluded him from any considered reply. The Adjudication Officer indicated that he was, from a WRC viewpoint, also very unhappy with the situation.

However, as the Respondent had a number of significant Opening legal Points and to expedite the overall progress of the case, Mr Guidera BL, for the Respondent was invited, as an opening statement, to outline these Legal points.

The Adjudicator assured the Complainant Representative, Mr Donohoe, that he would welcome Supplemental submissions from the Complainant on all the matters raised. A schedule of dates was indicated.

Mr Donohue also referred to European Directives especially the Whistle Blowers Directive of 2019 - 2019/1937. He argued that he, as the Complainant Representative, was at a considerable “Disadvantage of Arms” in a context of a lay advocate versus the almost infinite resources of the Chief State Solicitor’s Office appearing for the Respondent.

It was his view that the European Whistle-blower Directive of 2019 and Irish S.I. 464/2015 - Industrial Relations Act 1990 (Code of Practice on Protected Disclosures Act 2014) (Declaration) Order 2015 properly interpreted should allow the Complainant to be provided with equal resources by the State to plead his case. He referenced Section 52 of the S.I. 464

52. Any worker making a protected disclosure or any worker against whom an allegation has been made must have their constitutional right to natural justice and fair procedures upheld in accordance with all relevant employment legislation. In this regard, appropriate representation, if requested, should be accommodated.

This point was rejected by the CSSO Office as firstly a compete misinterpretation of the Directive which in any event had not been applied in Ireland at the Date (20th of November 2022) of the WRC Complaint and secondly a further misinterpretation as to what was meant by “appropriate representation”.  In any legal context any Respondent irrespective of status, in this case the Department of Defence, could not be reasonably expected to finance a Complainant in preparing and making a case against him. The Complainant had always had the option of using a recognised Military Representative Body to assist with his case.

1:2        Applicability of Protected Disclosures Act,2014 to members of the Defence Forces.

Central to the opening discussion points was the question as to whether or not Section 12 of the Protected Disclosures Act,2014 was applicable to members of the Defence Forces.

It was made clear that the legislation in force at the time of the WRC referral (20th November 2022) was the Protected Disclosures Act, 2014 and not the Protected Disclosure (Amendment) Act 2022 which became effective on the 1st January 2023.

At the conclusion of Day Two (21/02/2024) the Adjudication Officer indicated that he would carefully consider this issue as a preliminary to any wider exploration of the alleged Penalisation complaints.

1:3        Time Limits

The issue of Time Limits for the proper lodging of the complaint was also raised. The Respondent was of the view that the time limits provisions of the Workplace Relations Act,2015 had not been properly observed by the Complainant.

It was the Complainant view that the Penalisation was “ongoing”, and any delays could be traced to the advice he had received from the Minister of Defence’s Office to avail of the Defence Forces Ombudsman. At that stage he was unaware of the possibility of a WRC referral.

1:4        Additional witnesses

In conclusion to Day Two the Complainant requested the calling of additional Senior military witnesses. He alleged that the Aer Corps Officer witnesses called and cross examined were, it appeared, bereft of any real knowledge of the case. They had not been the effective decision makers.

2:          Adjudication view of Preliminary Points.

2:1      Time limits on Submissions / WRC Guidelines

The Adjudicator expressed his frustrations with the late submissions. However, as this was an area of constant difficulty for the WRC (Code of Practice and Guidelines not withstanding) he could only proceed as best as possible to allow the speedy progress of the case. It would not be customary to defer to the Complainant request via Mr Donohoe, to completely dismiss the Respondent case or to refuse to consider their very extensive submission on the basis of a late Submission to the WRC.

To expedite matters the Adjudicator directed that the Respondent be afforded the opportunity to make their opening points of the preliminary legal Arguments at Day One of the Hearing. The Complainant would then be afforded the opportunity to enter supplemental Submissions. He (Mr    Donohoe) could cross examine the Respondents at the first Hearing for any clarifications he felt were required and to assist him in the preparation of Supplemental Submissions for Day Two.

2:2         Adjudication findings on worker v employee

 Applicability of Protected Disclosures Act,2014 to members of the Defence Forces.

This issue was debated at length. Mr Donohoe contested that Section 12 had “universal” applicability and the worker – employee distinction was largely semantics. It was his strong view that a High Court referral for interpretation was required here by the WRC.

Nonetheless the Adjudicator must refer to a recent Adjudication decision Adj-00029646 McCarthy v the Minister for Defence which referenced, importantly, the Supreme Court in McGrath v Minister for Defence [2010] 1 IR 560

The Respondent relied heavily on the Supreme Court case of McGrath v Minister for Defence [2010] 1 IR 560 and by extension The State (Gleeson) v Minister for Defence [1976] I.R 280.

Unambiguously and as quoted from Par 44 of the McGrath 1 IR 560 judgement.

[44] In my view, it follows that the trial judge was in error in awarding damages for breach of contract to the plaintiff against the first defendant. (The Minister). As both Henchy and Kenny J said, a man of the permanent defence forces is not a servant of the first defendant. There is no contractual relationship between them (Underlining by Adjudicator)

In this clear statement it has to follow that the Complainant, in this case, cannot proceed under Section 12 of the PD Act, 2014 as an employment relationship, a status as an employee, is a basic requirement and is lacking in this case.

It is worth noting that a similar conclusion came with Adj-00018461 and LRC appeal PDD2017 of October 2021- Leahy v PRTB. The facts of that case were not completely parallel, but the Labour Court gave very careful consideration to the distinction between a worker and an employee in the PD Act,2014. The Labour Court determined that as the Complainant in that case was not an Employee, the Court could not proceed.

In this case, ADJ -00043269 and also in Adj-00029646 & Adj-00018461 and LRC Appeal of PDD2017 of October 2021 Leahy v PRTB it was made abundantly clear that Defence Forces Personnel were not “employees” to qualify under Section 12 of the Protected Disclosure Act,2014. Such personnel had an action in tort open to them (Section 13), but this is outside the remit of the WRC Adjudication processes.

Accordingly, the WRC does not have proper jurisdiction and the Complainant in this case cannot proceed with the Protected Disclosures complaint CA-00053840-001.

Accordingly, and deferring to the Supreme Court the complaint cannot proceed.

2:3       Time Limits on Lodging Complaints / Section 41 of the Workplace Relations Act ,2015.

Section 41 (6) of the Workplace Relations Act 2015 stipulates that a complaint must be lodged within six months of the date of the contravention concerned. The WRC complaint was received on the 20th November 2022. Three dates are relevant to the consideration of the case. 

Firstly, the alleged Protected Disclosure was made on the 11th of November 2014, secondly the Complainant retired from the service on the 19th July 2019 and finally he alleged that he only became aware of the alleged Presentation refusal in early December 2021. These points, excusing a delay, were vigorously contested by the Respondents.

In addition, Mr Donohoe argued that Covid 19 had effectively shut down all presentations in 2020 further excusing the Complainant delays.

To take a benign view the Adjudicator noted, initially, that the Complainant retired on the 19th July 2019. Covid restrictions did not come into effect until immediately post the St Patrick’s Day weekend (17th March 2020).

This was a gap of almost 8 Months during which a presentation could have taken place prior to Covid. It would be accepted as common sense that a Retirement Presentation take place reasonably proximate to the date of retirement. The Complainant argued that it was not until December 2021(say the 20th for argument) that he became aware that no presentation was in the offing for him. This was a period of two years and five months. The Complaint was then referred to the WRC on the 11th November 2022 almost 11 months later – (10 months and 22 days) later.

The Complainant argued in his oral and some written material they had been effectively side tracked by a suggestion from the Minister for Defence’s Office to take the case to the Defence Forces Ombudsman Commission.

Considerable case law (principally Globe Technical Services Ltd v Miller UD1824 and Rezmerita Ltd v Morkis DWT 1018) was cited by the Respondent to reinforce the time limits arguments.

The Complainant counter argued that the Non-Retirement Presentation was in effect an ongoing contravention or an ongoing Penalisation, as referred to in Equality Legislation “a continuum” that was in effect almost current to the date of the Hearing.

2:4      Adjudication findings on Time Limits

The Adjudication view, again in as benign a manner a possible, was that common sense had to apply even making allowances for the Covid time period.

There was no Presentation (the alleged Penalisation) for the first 8 months to March 2020 and even if accepting the December 2021 date, a further almost 11 months passed until the Complaint was lodged at the WRC.

Taking the view that Section 41 (6) of the Workplace Relations Act,2015 was clearly breached the question rises is there a case for a “reasonable” extension of time under Section 41(8). The oft quoted Cementation Sanska v Carroll case DWT 38/2003 is noteworthy here.

No compelling evidence of “reasonable cause” grounding the delay to present the complaint was adduced before the Adjudication Officer.to

On the point that the Non Presentation as in some way on Ongoing issue - in Equality Law “a Continuum of Discrimination” the Respondent quoted Minister for Defence v Murphy Adj-000128801 which referenced Mr Justice Hogan in HSE v McDermott [ IEHC] 331 The point being that a proper claim had to be grounded in an almost on going “repeat”  Contravention in the six months before the complaint was referenced.

In other words, the non-presentation would have to have been again or continually refused in the period back to the 11th May 2022. (6 months prior to the WRC Compliant on the 22nd November 2022) Common sense has to apply here. This was three years approximately since the Complainant’s retirement. It was abundantly clear at this stage (May 2022) that no presentation was in the offing. It was argued strongly by the Respondent, on both days, that the organising of Presentations was a “local matter” organised by immediate Colleagues close to the actual retirement date. The Complainant argued via Mr Donohoe, that there had been in effect a “Cold Climate” emanating from Senior Officers that made colleagues very wary of organising any functions. In his cross examination of a senior Aer Corps Officer on Day Two, Mr Donohoe, sought to demonstrate that “de jure” so to speak Presentations on Base were organised by colleagues but “de facto” all such presentations required the Approval of the Senior Officers in advance. A “Cold Climate” as opposed to a formal refusal, was alleged by the Complainant. Defence Forces Regulations were cited extensively by Mr Donohoe. The Senior Officer called in Respondent evidence, appeared, in vigorous cross examination from Mr O’Donohoe for the Complainant,  to be rather unclear on the issue.

 The Continuum of Discrimination argument, Cold Climate or not, would require a clear Presentation refusal in the 6th month period (6 months prior to the WRC Compliant on the 22nd November 2022) to have a firm basis.

However, the overall issue has to be seen by the Adjudication Officer on the “balance of probabilities” and common sense.  The Complainant retired on the 19th July 2019.  The alleged Disclosure was on the 11th of November 2014. The Complaint was lodged at the WRC on the 11th November 2022. I find that the Complainant has not lodged his complaint within the 6 months of alleged penalisation and has not shown reasonable cause to empower me to extend the deadline for submission of this complaint under the Act.

3:        Findings and Conclusions:

The Adjudication view, having considered all the materials both Oral and Written presented, is that the Complaint was firstly, precluded by the Supreme Court decision referred to McGrath v Minister for Defence [2010] 1 IR 560 and secondly was Out of Time.

 Accordingly, it cannot proceed.

For the reasons discussed above the Complaint has to be deemed Not Properly Founded. It is unsuccessful.

4:        Decision:

CA-00053840-001

Section 41 of the Workplace Relations Act 2015 and Schedule 2 of the Protected Disclosures Act, 2014 Section requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions of the cited Acts.

I find that, pursuant to the Supreme Court decision McGrath v Minister for Defence [2010] 1 IR 560, I do not have jurisdiction to hear the complaint of penalisation made under the Protected Disclosures Act,2014.

Secondly, I find that the Complainant has failed to comply with the time limit as set out in Section 41 of the Workplace Relations Act,2015

The Complaint fails.

Dated:   30th May 2024.

Workplace Relations Commission Adjudication Officer:  Michael McEntee

Key Words:

Protected Disclosure, Time Limits