Complainant

Respondent

Parties

Anthony  McIntyre

Independent Workers Union

Complainant

Respondent

Anonymised Parties

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Representatives

  Self represented

 Self represented

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-00058875-001

18/09/2023

The complainant is a lay litigant. At the commencement of the hearing he clarified that while he lodged a complaint under Schedule 2 of the Criminal Justice Act, he did so inadvertently, and that the complaint was in fact a claim under the protected disclosures legislation.  The complainant submits that, in the narrative part of the complaint form lodged with the WRC, he had clearly outlined that following the making of a protected disclosure, he was subjected to penalisation by the respondent.   

The complainant states that he has been an employee of the respondent since February 2019 working as a branch official. He states that his duties involve representing members in workplace disputes. The complainant states that in February 2023, he made a protected disclosure about the then newly appointed National Organiser of the union which is his employer. The complainant alleges that the National Organiser had sometime prior to his appointment gone online to order/ threaten/ recommend acts of violence against the property of three political parties that he was ideologically opposed to. The complainant states that there was no evidence to indicate that the appointment of the National Organiser had been made within the internal structures of the union.

The complainant asserts that the Dublin branch secretary announced at a branch meeting that the appointment had been made not by the National Executive Committee but by two named members of the union who were also members of the activist organisation in whose name the National Organiser had, as its then chairperson, issued his order to inflict violence. It was submitted that the Executive had no role in the appointment. The complainant states that the branch then wrote a letter to management objecting to the inherent unfairness and lack of transparency in the appointment process.

The complainant states that within 7 days of making his disclosure, the then union President contacted him to inform him that she had received it and that she would pass it on to the National Executive Committee. The complainant asserts that from that point onwards it became the responsibility of the NEC not the President to address the disclosure. The complainant submits that while required to follow up his disclosure and provide him with feedback regarding same within 3 months, the respondent simply ignored him.

The complainant states that at the same time as making his protected disclosure, he lodged a complaint with the NEC which outlined his concerns about how the union was being governed. The complainant states that the National Organiser about whom he had complained about in his protected disclosure but not in his grievance (which was a criticism of how the NEC vetted those who seek positions of influence within the union) when informed submitted a complaint about the complainant. The complainant asserts that the National Organiser’s complaint was not in relation to the complainant’s protected disclosure but about his grievance in which he figured by association but was not the subject of.

The complainant states that central to the National Organiser’s complaint was an assertion that the complainant had behaved maliciously and had no authentic grounds to lodge the grievance with the NEC. The complainant states that the then President, prior to being ousted in May while abroad, informed the complainant that she had arranged for a committee to be set up that would investigate both how appointments to positions of responsibility within the union are made and how complaints are dealt with. The complainant states that apart from that, he heard nothing.

The complainant states that in late July 2023, he was informed that his grievance against the NEC would be heard in conjunction with the complaint by the National Organiser against the complainant. The complainant submits that this contravened the intention of the now ousted President which was to have the complainant’s grievance dealt with first and then separately, the complaint against him made by the National Organiser. It was submitted that this was to ensure that employees and union members alike were not dissuaded from lodging grievances. The complainant asserts that the usurpation of the President’s authority designed to ensure that matters of governance raised in his complaint would not be properly examined led him to form an opinion that he was being treated unfairly and penalised by management in part because he had made a protected disclosure against the person the incoming management wanted to be National Organiser.

The complainant asserts that the incoming management effectively ensured that the scrutinisation process devised by the ousted President would not take place, delayed responding to his grievance until it had its own people in position and then opted for an investigation process wholly at odds with that envisaged by the ousted President. The complainant states that out of the 3 people on the investigation panel, 2 belong to the same activist organisation that appointed the person to the paid position of National Organiser. The complainant states that one was identified by the Dublin branch secretary at a branch meeting as being part of the two person body that appointed the National Organiser. The complainant asserts that minutes of a meeting show that this panel member further stated at a NEC meeting on 28 July 2023 that the complainant’s complaint was “politically motivated and was insincere about its questions of NEC conduct.” The complainant states that in adopting such a position, he prejudged the matter.

The complainant asserts that the other member of the investigation panel with a background in the same activist body the National Organiser belonged to, stated both at Dublin branch and National Executive meetings that action should be taken against the complainant because of the nature of his grievance. The complainant states that in a letter dated 4 September 2023, the same person informed him that he had made severe allegations against the National Organiser.  The complainant states that the purpose of the investigation was to establish if the complainant had in fact made any serious allegations. The complainant states that the panel member in question who also doubles up as the current union President by expressing in writing the sentiments that she did has given grave cause for concern that she too has already predetermined the outcome. The complainant states the fact that either person would be serving on an investigation panel while exhibiting serious prejudicial tendencies amounts to penalisation.    

The complainant asserts that in her letter dated 4 September 2023, the union President stated that the investigation was also being conducted because the NEC had received reports that the complainant was not attending meetings of the Dublin branch because of the presence of the National Organiser. The complainant states that his non-attendance was never raised in his grievance but was very much rooted in his protected disclosure in which he asked “that my employer give assurances that I should not have to work alongside or meet in any capacity with the person responsible for inciting/ ordering violence and that I will not be penalised for declining to do so on the grounds that to associate with the said person might damage my professional reputation as a union official who has the task of meeting employers, appearing before the Courts in relation to disputes and lobbying TD’s and Councillors”.

The complainant states that he is of the view that the reference to his withdrawal from Dublin branch activity being used to facilitate a complaint against him while his protected disclosure has gone unaddressed is tantamount to penalisation for having made the disclosure. The complainant states that he now finds himself in a position where one member of the union has been expelled without due process for unacceptable online behaviour while another is rewarded with a paid position despite having engaged in unacceptable online behaviour. The complainant states that rather than be expelled as the other member was, he is allowed to have his complaint against the complainant investigated while the complainant’s protected disclosure about him is totally ignored.

The complainant submits that the manner in which the matter has been handled particularly the emphasis on the grievance while totally ignoring the protected disclosure was not fortuitous but was arguably designed with conscious intent to ensure that the complainant as an employee was penalised by his employer. The complainant asserts that he has suffered reputational damage as a result of the actions of the respondent, in that, the perception that he would be associated with the serious online activities and threats of violence been advocated by the National Organiser.

The complainant states that he was not consulted regarding his temporary lay-off which runs contrary to his terms and conditions of employment.

The complainant further asserts that he has not been paid for expenses he has incurred which had previously been the position that he would get reimbursed for same. He states that this is a further form of penalisation against him by the employer.  

The respondent states that the complainant submitted his claim under Schedule 2 of the Criminal Justice Act, 2011. The respondent asserts that the within claim has no relevance to the aforementioned piece of legislation and requests that the claim be dismissed.

Background

The respondent states that the complainant has been employed by the Independent Workers Union  since 11 February 2019. It was submitted that the complainant is a salaried employee of the Union and was paid monthly.

The respondent states that on 21 February 2023, the complainant emailed two items of correspondence to the then President of the Union. These two items were then forwarded to the Secretary. It was submitted that the first item of correspondence was a grievance and the second item was a protected disclosure.

The respondent submits that an investigation into the complainant’s grievance was attempted, however he objected to the process. It was submitted that to date the complainant’s protected disclosure has not been investigated. The Union states that it does not attempt to offer an excuse for the tardiness, however at a recent meeting of the newly elected National Executive Committee of the Union held on 6 April 2024, it was agreed that the complainant’s protected disclosure will be investigated and a panel was appointed accordingly.

The respondent states that while the complainant continuously makes the claim in his submissions that he was penalised, he does not explain how this penalisation manifested.

The respondent asserts that since the complainant made his protected disclosure in February 2023, he has continued to be paid the same wage as outlined above on a monthly basis. The respondent submits that the complainant’s working conditions have not changed nor has any part of his terms of employment been altered by the Union.

The respondent states that the complainant was placed on temporary lay-off on 31 January 2024 and remains on temporary lay-off at present. It was submitted that the reason for this is due to the financial instability of the Union. The respondent asserts that over the year 2023, the Union had a steady decline in membership and as such the financial health of the Union was severely impacted. It was submitted that it was a very difficult decision to make for the Union but the overall fiscal wellbeing of the Union was prioritised.

The respondent states that there was no practice within the Union of paying expenses to the complainant and in those circumstances this issue could not be considered penalisation for having made a protected disclosure.

The respondent submits that the complainant was not penalised for making a protected disclosure and his claims are unfounded and should be dismissed.  

The within matter involves an allegation by the complainant that he suffered adverse treatment following the referral of a protected disclosure. In particular, the complainant submitted that the respondent actively avoided the investigation of his initial complaint and that he suffered penalisation in that he was layed off work and his expenses were not paid.

The respondent submitted that the complaint referred by the complainant did not constitute a protected disclosure. It further submitted that the complainant did not suffer any form of adverse treatment or penalisation.

Under the Act, there is a requirement that the complainant will firstly have to demonstrate that the complaint raised constituted a protected disclosure within the meaning of the Act. Secondly, the complainant has to demonstrate that the issues arising thereafter constitute detriment that might give rise to penalisation within the meaning of the Act. Finally, the complainant has to demonstrate a causal connection between the alleged protected disclosure and the alleged detriment suffered.

Section 5(1) of the Protected Disclosures Act defines a “protected disclosure” as a “disclosure of relevant information made by a worker in the manner specified”.

Section 5(2) defines “relevant information” as that which, “in the reasonable belief of the worker…tends to show one or more relevant wrongdoing”.

Section 5(3)(b) provides “that a person has failed, is failing or is likely to fail to comply with any legal obligation…” as an example of a “relevant wrongdoing” cited above.

Section 5(3)(d) provides that “the health or safety of any individual has been, is being or is likely to be endangered” asa further example of a “relevant wrongdoing”.

Having regard to the foregoing, I find that the complaint raised by the complainant constituted a protected disclosure within the meaning of the Act.

The next matter to be considered is whether the alleged adverse treatment suffered by the complainant constitutes “penalisation” for the purposes of the Act. In this regard, the complainant has alleged that his lay off in January 2024 and his expense claims not been reimbursed are acts of penalisation against him for having made a protected disclosure.

Section 1 of the Act defines “penalisation” as,

“…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;

Having regard to the list above, it can be seen that the definition of what may constitute “penalisation” is extremely wide and encompasses almost any form of adverse treatment that leads to a detriment.

The final point that must be demonstrated by the complainant is a causal link between the detriment and the protected disclosure. In this regard Section 12(1) of the Act provides that,

“An employer shall not penalise or threaten penalisation against an employee…for having made a protected disclosure”

Section 12(7C) states… “In any proceedings by an employee under the Workplace Relations Act 2015 in respect of an alleged contravention of subsection (1), the penalisation shall be deemed, for the purposes of this section, to have been as a result of the employee having made a protected disclosure, unless the employer proves that the act or omission concerned was based on duly justified grounds.”

In the matter of Aiden & Henrietta McGrath Partnership -v- Ann Monaghan [2017] 28 ELR 8, the Labour Court held that,

“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 determined. This involves the consideration of the motive or reason which influenced the decision maker in imposing the impugned detriment.”

Having regard to the foregoing and the totality of evidence presented in the within matter, I find that the complainant did make a protected disclosure in line with section 5 of the Act. The matter for consideration is whether or not the complainant was penalised for having made such a protected disclosure. It is necessary for a complainant to show that the detriment of which he complains was imposed “for” having committed a protected Act. This suggests that 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.

The respondent stated that 2023 was a very busy year and it did not have the time or resources to investigate the complainant’s protected disclosure. However the respondent stated at the hearing that the union has committed to investigating the complainant’s protected disclosure in the coming months and has committed the resources required in order to complete same.

The respondent further states that over the year 2023 the union had a steady decline in membership and there was a significant deterioration in the financial situation of the union. The respondent provided minutes of the various meetings to substantiate the declining fiscal position of the union. The respondent further states that it had to implement cost cutting measures which included the lay off of the complainant. It further stated that on the basis of its declining financial position,  volunteers undertook administration work and were paid a stipend on a pro rata basis for same.

The respondent submitted that the complaint of penalisation is baseless. The respondent highlighted that it was a year following the complainant lodging two items of correspondence with the union (one item was a grievance and the other a protected disclosure) that the complainant was layed off. It states that in those circumstances and given the length of time between same it has argued that the complainant’s lay off was not penalisation for making of a protected disclosure but rather due to the declining fiscal position of the Union.

Based on the documentation submitted I accept that the respondent had difficulties from a financial perspective and put remedial measures in place to deal with same which included the lay off of the complainant on 31 January 2024. I note that there is an 11 month gap from the time of the complainant making the protected disclosure and his lay off from the Union. In those circumstances I find that complainant has failed to establish any link between this process and his protected disclosure.   

In relation to the complainant’s claim that he was penalised in relation to unpaid expenses, the respondent stated that there was no practice of paying expenses to the complainant and therefore this could not be considered penalisation for having made a protected disclosure. I find that the complainant has not provided any substantiating evidence to support his claim that he was penalised in respect of unpaid expenses for having made a protected disclosure.

Having examined all of the evidence heard in the within matter, while there were shortcomings in the manner in which the respondent dealt with the complaints, I find that no detriment in line with section 12 of the Act arises. In those circumstances, I am satisfied that no penalisation occurred.

I find that the within complaint is not well founded.

Protected Disclosure, Penalisation, Causal Link