Complainant

Respondent

Anonymised Parties

Complainant

Respondent

Representatives

Self-Represented

Employee Relations Manager

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00057832-001

21/07/2023

This matter came before the WRC dated 21/07/2023 as a complaint seeking adjudication by the WRC under schedule 2 of the Protected Disclosures Act, 2014.   The aforesaid complaint was referred to me for investigation.  A hearing for that purpose was scheduled to take place on 19/01/2024. 

CA-00057832-001

The Complainant claims she was penalised or threatened with penalisation by her employer for having made a protected disclosure under the Protected Disclosures Act, 2014. 

The Respondent refutes the claim that penalisation has occurred. 

The Complainant commenced employment with the Respondent on 23/12/1988. 

Both parties filed helpful written submissions including supporting documentation prior to the date of hearing. 

One brief submission was filed by the Respondent post hearing at my request.  This submission was forwarded to the Complainant who was provided with the right of reply within a specified timeframe. 

CA-00057832-001

The Complainant submits her complaint relates to the negative treatment and bullying that followed her raising concerns of nepotism and management going against the PSA of LIFO rules.  The Complainant submits she raised concerns relating to managements relatives and friends receiving seniority status on a shift over staff with more than 21 years’ service in 2021 and following that the Complainant claims it appeared she was being set-up by management and staff to undergo a “trust in care” allegation which would result in her being removed from the shift. 

The Complainant submits there was a meeting on 1st June 2021 during which the reduction of staff on a sleepover shift was first discussed.  The Complainant submits that running in parallel to these talks there were What’s App group discussions, rhetoric among the staff and other talk among other parties in various groups.   The Complainant submits she found herself in a conflicting position as she did not want to be the only person speaking up about the fact that in her view her seniority had been overlooked as other colleagues with similar service seemed to accept this.  The Complainant submits she was completing her Masters during this time and about to embark on a PHD. 

The Complainant submits that due to the uncertainty about her shift she decided to undertake a shorter course instead of a PHD and she applied for funding for same.  The Complainant submits she received no response regarding the requested funding for the postgrad course having made numerous attempts to seek assistance in requesting funding for the TCD course, sending the initial request to [redacted] who then contacted [redacted] on the 5th of September 2021.   The Complainant submits having heard nothing, she again made contact on the 10th of September to which she received a reply on the 13th of September 2021.   

The Complainant submits she was told verbally by the DON in a telephone conversation on 21st of September 2021 that she would get funding for the course that she wanted to do in TCD.  The Complainant submits that during this telephone conversation the DON suggested she might like to apply for an upcoming job as a workshop supervisor when they spoke about what she (the Complainant) might do when the unit closes.  The Complainant submits she was very disappointed when she discovered that eligibility for the role only required the same qualification as that which was required for her current role, and she submits at that point she decided she felt there was no need for her to change roles as she was no longer willing to walk away from her shift on sleepover in order to avoid conflict with management over seniority. 

The Complainant submits she informed the DON that she was not prepared to surrender her post for the workshop supervisor role.  The Complainant submits she did not receive funding for the course for which she had applied, and she was ignored from this point.  The Complainant submits that following this the attitude of senior staff began to deteriorate towards her and she began to feel harassed by her colleagues and by her trade union representatives. 

The Complainant submit she went off duty on sick leave initially at the of November 2021.  The Complainant returned to work on 10th December and she submits she was harassed by her trade union representative.   The Complainant attended occupational health on 11th April 2022 and she submits she outlined at this occupational health consult that management were attempting to set her up in a trust in care order so that they could remove her from the shift and proceed with the planned rollout.  During this period the Complainant submits there were numerous texts from other staff one of whom she did not know regarding the shift proposals.   

The Complainant submits management did not know how to overcome the situation regarding her refusal to move.  The Complainant submits that on the 19th of April she was in such a toxic environment and terrified she would miss something that management could fix on her.  The Complainant submits she was exhausted.  The Complainant submits she felt the need to take herself out of the equation so she went off on a medical cert again until October 2022. 

During this time the Complainant submits there were many phone calls with occupational health and it was agreed a risk assessment would be undertaken.  The Complainant submits she met her line manager for this and she submits she (the Complainant) recorded this meeting. 

The Complainant details events as they unfolded throughout 2022 and into 2023 and she claims management have failed to engage with proper procedure on numerous occasions throughout including follow up on risk assessment and failure to administer a proper stage 3 grievance procedure. 

The Complainant submits she feels she meets the criteria under a protected disclosure from September 2021 when she first made claim to her seniority with the DON and with reference to an email to her DON of November 24th as follows:

“Good morning [name redacted]

I am writing to you this morning again relating to the current changes in the low support-houses.  I have become aware that the understanding among low-support staff is that the holders of the posts on the shift are viewed in a manner that suggests I am to lose my shift and will have to return to day shifts.  During encounters with colleagues, it appears to me that this view is the consensus.  I have defended my position and have claimed that at the meeting I attended [name redacted] stated those who hold the post longest remain on it, and that I hold my post for 33 years, placing me in one of the remaining positions, to this I have been faced with coughs and sniggers, with comments suggesting that for various reasons the staff to remain were hand-picked and planned.  Additionally, it has been said that I will be taken off my shift ‘one way or the other’.  Although I rarely place credence on such idle chat, given the imminent closure of the house I am in, I am finding the situation very stressful.  As you can imagine, with the close network of staff living locally I am constantly quizzed on what is happening to me when the move occurs.  I have had no information from management on where I am going upon the closure, yet my colleague seems to know her faith.  I would prefer not to have the situation clouded by gossip and would like to be provided with some clarity to avoid any confusion.”

The Complainant submits the above email is a protected disclosure and she submits she was subjected to penalisation and bullying thereafter. 

The Complainant submits at the end of April (April 26th) she was informed she would have to take her owed annual leave and time owed from sick leave before the end of the working year.  The Complainant submits she expressed that as her financial situation had not stabilized since returning from sick leave he was in no position to take this leave.   The Complainant submits she explained she had a planned trip with her sister who was visiting from Australia if they could accommodate her on the leave, she would very much appreciate it.   The Complainant submits it was insisted that it had to be done this way and she was forced to take the leave at this point.

The Complainant submits that when she returned from annual leave, on the 14th of May 2023, she wrote to the Employee Relations Manager informing him she would be submitting a case with the WRC.  The Complainant submits he (Employee Relations Manager) did respond seeking another meeting, however, she felt she no longer was able to engage with them as the whole situation was completely out of any resolution and her efforts to resolve her concerns at a local level were beyond repair coupled with the fact that her trust in him or her managers was nonexistent.   

The Complainant submits she contacted the protected disclosure office of the Respondent on the 18th of May 2023. 

CA-00057832-001

The Respondent submits the specific details relating to the Complainant’s complaint pursuant to the Protected Disclosures Act 2014 can be summarised as follows:

·       Penalisation of the Complainant where she alleges she has suffered negative treatment and bullying following raising concerns of nepotism and the breach of rules regarding seniority “last in, first out.”

·       It is the Complainant’s contention that as a result of making this protected disclosure resulted in her being “set up” by management and staff to undergo a Trust in Care allegation.

·       It is the Complainant’s contention that management failed to engage in proper procedures in relation to a risk assessment and management failed to administer a proper stage 3 grievance hearing.

The Respondent rejects these complaints and submits the Complainant lodged a protected disclosure on 12 July 2023 which has been fully investigated and closed.  The Respondent wholly refutes the allegation that the Complainant was subjected to negative treatment and bullying as a result of making that disclosure.  The Respondent submits the Complainant has never been the subject of a Trust in Care investigation nor was she bullied or treated in any negative way as alleged.

The Respondent refutes the allegation in relation to the stage 3 grievance hearing.  The Respondent submits the Complainant had been offered the opportunity for a hearing at stage 3 and this was scheduled for 7 February 2023.  The Respondent submits the Complainant advised that she had submitted her complaint to the WRC and it was her preference that matters be dealt with in that forum. 

The Respondent submits the Complainant alleges penalisation in that management have failed to engage with proper procedures in relation to risk assessment following her absence from work on sick leave.  The Respondent submits the Complainant met with her line manager on 26 August 2022 to carry out the risk assessment as recommended by Occupational Health.  The Respondent submits the Complainant set out in detail her concerns which were dealt with within the parameters of what was possible but that the concerns raised by the Complainant did not relate to risk but rather to what she felt she was entitled to and these issues were outside the scope of a risk assessment. 

The Respondent submits there are a number of facts which are significant to refute the claim that penalisation has occurred the most important of which is that the protected disclosure was submitted by the Complainant on 12 July 2023 and managed in accordance with the Respondent’s procedures for same whereby the investigation was carried out with the highest level of confidentiality.  To this end the Respondent submits nobody within the service would have been aware that the Complainant had made a protected disclosure and therefore, the Respondent submits there can be no connection between the disclosure being made and the alleged negative treatment. 

The Respondent submits that as the Complainant filed her complaint with the WRC on 21 July 2023 some 9 days following her lodging her protected disclosure she has to identify the negative treatment she has endured within those 9 days. 

Post hearing submission from Respondent:

I have been advised by the General Manager of the Office for Protected Disclosures as follows:

 “The Act covering protected disclosures states that a reporting person must receive feedback (update) within three months of reporting a matter, and may (on written request) receive further updates/outcome at three month intervals.

 The reporting person in this instance was written to on 07 July 2023 advising that the matter had been accepted as a PD and that the Respondent had referred the matter for examination.  They were asked to contact this office in writing if they wanted further updates.  They did not respond.  As such, no further updates were provided from this office”.

CA-00057832-001

In conducting my investigation, I have carefully reviewed the relevant submissions and supporting documentation presented to me by the parties.  I have carefully considered the oral evidence adduced at hearing.    I deemed it necessary to make my own inquiries into the complaint during hearing to establish and understand the facts and to seek clarification on certain matters.

The Complainant claims she made a protected disclosure in an email of 24th November 2021 (hereafter PD 1) and a further protected disclosure on or around May 2023 (hereafter PD 2).

The Respondent submits the Complainant made only one protected disclosure namely PD 2.  This matter is not in dispute albeit the Respondent denies there was any penalisation in respect of same.   In circumstances where it is accepted that the Complainant has made a protected disclosure within the meaning of the Act it is neither appropriate nor necessary for me to consider the substance of the disclosure and whether it constituted a protected disclosure (PD 2).    

Adjudicator Note:  I note the Respondent submits PD 2 was submitted by the Complainant on 12th July 2023.  I am satisfied that in fact the Complainant first contacted the protected disclosure office of the Respondent on 18th May 2023.   

PD 1

The Complainant alleges matters raised by her in September 2021 constitute a protected disclosure for which she has suffered negative treatment.  I note the Complainant’s claim that she feels she meets the criteria under a protected disclosure from September 2021 when she first made claim to her seniority with the DON.  The Complainant submits the email sent to her DON on 24th November 2021 is a protected disclosure. 

The Relevant Law

The Protected Disclosures Act 2014 (as amended) provides that 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.  The Protected Disclosures Act 2014 (as amended) provides at section 5 as follows:

 5. (1) For the purposes of this Act “protected disclosure” means, subject to subsection (6) 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, 7B, 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 a work-related context. 

(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”

Sub-sections (6) and (7A) respectively address the disclosure of trade secrets and legally privileged information and these are not relevant for this complaint.  Sections 17 and 18 refer to law enforcement and international relations and are also not relevant here.   

For our purpose regarding this complaint therefore, a “protected disclosure” is the disclosure by an employee to his or her employer, or another person, of relevant information.  Section 5(2) of the Act provides that:

“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.”

Section 5(8) provides that in these proceedings at the WRC, “involving an issue as to whether a disclosure is a protected disclosure it shall be presumed, until the contrary is proved, that it is.” 

Section 12 of the Act, makes it unlawful for an employer to penalise an employee for making a protected disclosure:

(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. 

Penalisation is defined as to mean any act or omission that affects a worker to the worker’s detriment and includes as follows:

(a) suspension, lay-off or dismissal,

(b) demotion, loss of opportunity for promotion or withholding of 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) coercion, intimidation, harassment or ostracism,

(f) discrimination, disadvantage or unfair treatment,

(g) injury, damage or loss,

(h) threat of reprisal,

(i) withholding of training, (j) a negative performance assessment or employment reference, (k) failure to convert a temporary employment contract into a permanent one, where the worker had a legitimate expectation that he or she would be offered permanent employment, (l) failure to renew or early termination of a temporary employment contract,

(m) harm, including to the worker’s reputation, particularly in social media, or financial loss, including loss of business and loss of income,

(n) blacklisting on the basis of a sector or industry-wide informal or formal agreement, which may entail that the person will not, in the future, find employment in the sector or industry,

(o) early termination or cancellation of a contract for goods or services,

(p) cancellation of a licence or permit, and

(q) psychiatric or medical referrals;”

Section 5 of the Protected Disclosures (Amendment) Act 2022 provides as follows inserted at subsection 5A:

“(5A) A matter concerning interpersonal grievances exclusively affecting a reporting person, namely, grievances about interpersonal conflicts between the reporting person and another worker, or a matter concerning a complaint by a reporting person to, or about, his or her employer which concerns the worker exclusively, shall not be a relevant wrongdoing for the purposes of this Act and may be dealt with through any agreed procedures applicable to such grievances or complaint to which the reporting person has access or such other procedures, provided in accordance with any rule of law or enactment (other than this Act), to which the reporting person has access.”

There are three components to the making out of a claim of penalisation under the Protected Disclosures Act:

1.       An employee must have a reasonable belief that a wrongdoing is occurring, has occurred or might occur;

2.       They must communicate what they know about the alleged wrongdoing to a prescribed person, their employer, a government minister, a legal advisor or another person;

3.       They must show that, because of their communication about the alleged wrongdoing, they have been penalised. 

PD 1 The Relevant Facts

I note the Complainant’s claim that she feels she meets the criteria under a protected disclosure from September 2021 when she first made claim to her seniority with the DON followed by an email of 24th November 2021 the narrative of which is set out above but which I will set out hereunder for ease of reference as follows:

“Good morning [name redacted]

I am writing to you this morning again relating to the current changes in the low support-houses.  I have become aware that the understanding among low-support staff is that the holders of the posts on the shift are viewed in a manner that suggests I am to lose my shift and will have to return to day shifts.  During encounters with colleagues, it appears to me that this view is the consensus.  I have defended my position and have claimed that at the meeting I attended [name redacted] stated those who hold the post longest remain on it, and that I hold my post for 33 years, placing me in one of the remaining positions, to this I have been faced with coughs and sniggers, with comments suggesting that for various reasons the staff to remain were hand-picked and planned.  Additionally, it has been said that I will be taken off my shift ‘one way or the other’.  Although I rarely place credence on such idle chat, given the imminent closure of the house I am in, I am finding the situation very stressful.  As you can imagine, with the close network of staff living locally I am constantly quizzed on what is happening to me when the move occurs.  I have had no information from management on where I am going upon the closure, yet my colleague seems to know her faith.  I would prefer not to have the situation clouded by gossip and would like to be provided with some clarity to avoid any confusion.”

I note the Complainant did not utilise any formal mechanism at that time namely she did not invoke the protected disclosure procedure which she subsequently invoked in 2023. 

Notwithstanding, while I note the email of 24th November 2021 did not expressly state that the issues raised by her in the aforesaid email constituted protected disclosures, nor was any of the language of the Act utilised in the email, for completeness, I am mindful of the case of Clarke v. CGI Food Services Limited & Anor [2020] IEHC 368 where Humphries J held as follows:

“One can make a protected disclosure without invoking the 2014 Act or without using the language of “protected disclosure”.  It is often only after the victimisation, dismissal or other adverse consequence arrives that one has to “retrospectively” figure out what really happened and analyse it in the statutory language.”         

This element of the Complainant’s claim (PD 1) is heard under the terms of the Protected Disclosures Act 2014 in operation at the time of the disclosures claimed which is on or around September 2021 prior to the enactment of the Protected Disclosures (Amendment) Act, 2022 on 01/01/2023.     

My jurisdiction regarding this complaint is confined to determining whether, within the meaning of section 12 of the Act, the actions of the Respondent amount to prohibited penalisation.  In consideration of this determination, I must first examine whether a protected disclosure is made within the meaning of the Act at section 5 with matters referred to by the Complainant as raised by her on or around September 2021 and in her email of 24th November 2021.   I must be satisfied from the evidence as presented to me that the Complainant has made a protected disclosure.

Accordingly, it falls to be considered if matters raised by the Complainant to the DON on or around September/November 2021 constitute a “protected disclosure” within the meaning of the Act. 

I have considered at length and in comprehensive detail the Complainant’s submissions including email threads and What’s App group threads on matters as they evolved on or around end September 2021 when the Complainant alleges that she feels she meets the criteria under a protected disclosure from when she made claim to her seniority with the DON culminating in her email of 24th November 2021.      

I note the Complainant was not satisfied with the manner in which an agreement was reached between management and her trade union, and she was clearly not satisfied with the outcome of that agreement.  The Complainant held and still holds very strong beliefs on what she perceives the outcome of those discussions should have been and I fully accept that is her prerogative.  While I may be sympathetic to the Complainant’s argument and the situation that she describes finding herself in as being at odds with her colleagues, her trade union and management whilst continuing to maintain her position on her seniority, I am bound to decide on this matter within the parameters of the relevant legislation.      

Having carefully considered the matter I cannot find the Complainant’s claim to her seniority to the DON on or around end September 2021 to be a protected disclosure within the ambit of the Act.  I am not satisfied the Complainant’s assertion of her position on her seniority to the DON can be elevated to the status of a protected disclosure.  I am unable to find the Complainant’s position or stance on her seniority as articulated to the DON is a disclosure of relevant information for the purposes of the impleaded Act.   

I have carefully reviewed and considered at length the content of the Complainant’s email of 24th November 2021.  The Complainant states in the aforesaid email that the understanding among low-support staff is that the holders of the posts on the shift are viewed in a manner that suggests she is to lose her shift and will have to return to day shifts.  The Complainant states that it appears to her that this is the consensus from encounters with colleagues.  The Complainant states she has defended her position and continues to do so, and she states this has been met with scoffs and sniggers and comments suggesting the staff to remain were hand-picked and planned.       

I find the Complainant’s position as set out in her email of 24th November 2021 provides a very descriptive backdrop against which discussions took place and agreement was reached at that time in light of her references to idle chat; comments abounding; and a situation clouded by gossip.   I am satisfied the thrust of the Complainant’s email of 24th November 2021 was a reiteration of her firmly held stance on the matter of her seniority and an indication of her intention to continue to defend her position.  I am unable to find this constitutes a relevant wrongdoing as envisaged by the Act. 

I am unable to find that the Complainant’s request for some clarity regarding her position when the unit closes to be a protected disclosure within the meaning of the Act.   Nor am I able to find that the Complainant’s commentary on the backdrop and associated interpersonal exchanges that took place within that environment at that time to be a protected disclosure within the meaning of the Act.  Nor am I able to find the Complainant’s reiteration of her position on the matter of her seniority to be a protected disclosure within the meaning of the impleaded Act.  Nor am I able to find the Complainant’s reference to being faced with “comments suggesting that for various reasons the staff  to remain were hand-picked and planned” to be a protected disclosure within the meaning of the Act.  Nor am I able to find the Complainant’s reference to it having been said that she would be removed from her shift one way or the other to be a protected disclosure.  I note the Complainant states she herself rarely places credence on such idle chat.         

I carefully note the contents of the email of 24th November 2021, and it is my view that no information is provided, or relevant wrongdoings identified by the Complainant that would bring her aforesaid email within the definition of a protected disclosure.  I am satisfied that the Complainant was raising issues that related to her terms and conditions of employment and that these issues were of concern to her and personal to her particularly her grievance with the manner in which it was proposed to deal with her seniority which others with similar seniority were accepting of. 

I conclude the Complainant was not making a protected disclosure for the purposes of the Act on or around the end of September 2021 or in her email of November 2021 as matters complained of to the DON and set out in her email related exclusively to the Complainant and her stance on seniority which she contextualised with a commentary on interpersonal exchanges taking place in the background which the Complainant sums up by submitting she rarely places credence on idle chat. 

I am unable find that the matters set out above by the Complainant disclose relevant wrongdoing within the ambit of the impleaded Act. 

As I find that the Complainant did not make a protected disclosure there is no basis for an investigation into her allegation that penalisation within the meaning of the Act has occurred.  Accordingly, this does not arise for consideration.

It follows that the complaint of Penalisation pursuant to the Protected Disclosures Act, 2014 is not well-founded in respect of PD 1.

Finally, I have carefully considered the timelines in regard to the filing of this complaint (PD 1) albeit this is purely a technical point in light of the above findings, but it is a point that I will address for completeness and for the avoidance of any possible doubt.  The Workplace Relations Act, 2015 which amended the Protected Disclosures Act, 2014 sets out the time limits for the consideration of a complaint under this Act.      

Section 41 (6) and (8) of the Workplace Relations Act, 2015 provide as follows:

“Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.” 

Section 41(8) of the Workplace Relations Act, 2015 provides that if a complaint is not submitted within six months of the alleged contravention, an extension may be granted by an Adjudication Officer up to a maximum time limit of twelve months where, in the opinion of the Adjudication Officer, the Complainant has demonstrated reasonable cause for the delay in accordance with the provisions:

“An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the period referred to in subsection (6) or (7) (but not later than six months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.” 

This complaint was filed with the WRC on 21/07/2023 and as no argument was presented to me as to a possible extension under section 41(8), I would have been limited in my enquiries to matters arising in terms of a contravention from 22/01/2023 to 21/07/2023.  There is no provision which allows complaints outside of a twelve-month period to be heard.

For the sake of completeness, I have considered it important to address this point.        

PD 2 The Relevant Facts

It is not in dispute that the Complainant lodged a protected disclosure in mid-2023.  The Complainant exhibited an acknowledgement letter dated 07/07/2023 which detailed the protected disclosure and requested that the Complainant inform the sender in writing if she wished to receive updates on the matter.  I note the Complainant did not elect to do so.  I am satisfied the Complainant commenced the correspondence relating to the protected disclosure on or around 18/05/2023. 

The Complainant filed her complaint to the WRC on 21/07/2023.  Therefore, the cognisable period is from 18/05/2023 to 21/07/2023.  The Complainant submits that the alleged detriment to her for raising this protected disclosure was that she was forced to take annual leave when she did not wish to do so.  To make out a case that penalisation has occurred a complainant must show that penalisation follows, and is a consequence of, having reported a wrongdoing.   The Complainant must show 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.  Claims of penalisation which may be deemed to be within the cognisable time period must, therefore, be examined to establish if the Complainant suffered a detriment contrary to the Act, during the cognisable time period and to establish, as the Labour Court outlined in McGrath Partnership v. Monaghan PDD162 if the

“…detriment giving rise to the complaint must have been incurred because of, or in retaliation for, the Complainant having made 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 the 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 consideration of the motive or reasons which influenced the decision maker in imposing the impugned conduct.”

I note the Complainant submits she was notified on 26/04/2023 of the requirement that she take her “owed annual leave and time owed from sick leave before the end of the working year”.  The Complainant submits she was forced to take the leave at this point although it did not suit her.  The Complainant submits she first contacted the protected disclosure office of the Respondent on 18/05/2023.  In deciding whether the Complainant was penalised I have carefully considered her written submissions and evidence submitted at hearing. 

As the requirement to utilise her accrued annual was brought to her attention on 26/04/2023 and she did not contact the protected disclosure office of the Respondent until the 18/05/2023 I am unable to find a causal connection between the alleged detriment and the protected act.   I find the Complainant has failed to demonstrate a causal link between the alleged detriment and the protected disclosure.  I make this finding because of the temporal and chronological inconsistency that arises here namely that the alleged detriment took place before the protected disclosure was made. 

On the basis of the evidence as presented to me I conclude the alleged detriment predates the Complainant’s submission of a protected disclosure.  The Complainant has failed to establish within the cognisable period causation between the penalisation alleged and the protected disclosure. 

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 this complaint in relation to PD 2 is not well-founded. 

CA-00057832-001

For the reasons set out above I find the complaint of penalisation pursuant to Schedule 2 of the Protected Disclosures Act, 2014 to be not well-founded.

Protected Disclosures; Penalisation; Causation;