Complainant

Respondent

Parties

Patrick  Gorman

Defence Forces, Air Corps

Representatives

Hugh Guidera B.L instructed by the Chief State Solicitor's Office

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-00060211-001

20/11/2023

The complainant initially sought to have the hearing adjourned on the basis that matters relevant to jurisdiction were on appeal from other cases to the Labour Court.

The complainant submitted that a hearing of the complaint in this case should be postponed until the Labour Court had issued its decisions.

The complainant’s representative confirmed that while a general issue related to jurisdiction was at issue on those appeals, no specific issue related to the initial preliminary point in this case (whether the correct respondent had been named) arose in those cases.

Accordingly, the hearing proceeded.

The complainant was engaged as a member of the Defence Forces from 10th August 1984 to 19th July 2019. He made a complaint on November 19th 2023, and  claims that he has been penalised for having made protected disclosures under the Protected Disclosures Act, 2014.

He submits in the Complaint Form that he made that protected disclosure on 6th January 2023 that he has been penalised in the following manner as described (paraphrased) on the Complaint Form, and that it concerned the failure of the Ombudsman of the Defence Forces.

“to investigate cases of penalisation of a whistleblower / reporter of wrong doing, submitted by me in 2016 and also the ODF’s failure to investigate a Redress of Wrongs complaint submitted by me in 2014”.

He also submits that the Report of the Ombudsman dated July 31st, 2023, itself constitutes the alleged Penalisation and also suggests that the general handling by the Ombudsman of the complaints, and the failure of the Ombudsman to render findings on certain issues itself constitutes the alleged Penalisation.

He purports to quote three separate extracts from the Impugned Report and suggests that these extracts and/or findings constitute the alleged Penalisation: claiming that the Ombudsman’s determination at para. 11 of the report that a determination could not be made on an issue due to the absence of evidence denied him an effective remedy and was therefore to his detriment “and is therefore penalisation as per the act”.

The complainant says that the Ombudsman’s determination at paras. 17 to 18 of the Impugned Report that a determination could not be made on an issue due to unanswered letters from a party denied him an effective remedy and was therefore to his detriment “and is therefore penalisation as per the act”.

He claims that the Ombudsman’s comments at para. 19 of the Impugned Report “displays bias and a partisan approach to his investigation of my complaint of Penalisation”, and was therefore to his detriment “and is therefore penalisation as per the act”; and

He further suggests that the interviewing by “ODF investigators” of members of the Defence Forces on August 31st,t 2023 also constitutes the Alleged Penalisation.  To this end, he has purported to provide a verbatim quotation from the ODF investigators in which it is suggested he was leading another member of the Defence Forces in writing certain emails. Arising from this, the complainant claims that the Ombudsman.

 “was more focused on the individuals who submitted complaints of penalisation than investigation the perpetrators of the penalisation”.

He submits that this amounted to a breach of the GDPR and of section 10 of the Ombudsman (Defence Forces) Act 2004 and that it was damaging to his standing and reputation “and therefore penalisation as per the act”.

The respondent submits that these complaints are fundamentally misconceived and says that the complainant has identified the wrong respondent in this complaint which ought to be dismissed as frivolous, vexatious and/or bound to fail.

Without prejudice to the foregoing, the WRC has no jurisdiction to consider the Complainant ’s dispute pursuant to section 12 of the 2014 Act, as amended by the Protected Disclosures (Amendment) Act, 2022.

Preliminary Issue: who is the correct respondent?

The complainant has identified the Defence Forces as the respondent in this claim, but In spite of this, the substance of the Complaint Form, i.e., the Alleged Penalisation, relates entirely to the Ombudsman, both to the Impugned Report and the investigations made by him. No grievance as against the Defence Forces and/or Minister for Defence and/or the Department of Defence is discernible from the Complaint Form.

The Office of the Ombudsman is an independent statutory body established pursuant to the 2004 Act. By its nature, it is an independent and external body to the Defence Forces and exists entirely independently to the Minister.

Section 4(1) of the 2004 Act provides that the “ombudsman shall be independent in the performance of his or her functions and shall at all times have due regard to the operational requirements of the Defence Forces”.     

This statutory provision is unambiguous on its face. The Ombudsman is an entity independent of the Minister of Defence, the Department of Defence and the Defence Forces. As such, the respondent is not able to speak to the substance of this complaint other than to submit that it has no business answering it, in light of the independence of the Ombudsman.

The respondent set out this position in correspondence to the WRC dated 13th March 2024, of which the complainant has had sight.

Whereas there does not appear to be legal authority directly interpreting the apparently unambiguous import of section 4(1), it is noted that it has received some limited judicial treatment by the High Court, incidentally in proceedings brought by the Complainant. In Patrick Gorman v. Ombudsman for the Defence Forces [2013] IEHC 545,Hedigan J. noted as follows at para. 1.1 with respect to section 4(1) of the 2004 Act:

“The Office of the Ombudsman for the Defence Forces (hereafter the DFO) was established by the enactment of the Ombudsman (Defence Forces) Act 2004 (hereafter the 2004 Act). The Ombudsman provides military personnel with access to an independent and impartial external statutory authority for the resolution of complaints.” (emphasis added)

Hedigan J. noted further at para. 5.5 of Gorman:

“All the other attributes of an independent office are preserved in this new part-time regime. It seems to me that there remains to any member of the Defence Forces the same independent arbiter of complaint that has existed since 2005”.

(emphasis added)

The Minister and/or the Defence Forces are unable to address this complaint and cannot trench upon the independence of the Ombudsman by attempting to comment on the performance of its functions, or speak to the substance of the complaint, concerning, as it does, an investigation carried out by, and report produced by, an independent third party.

The respondent has sought to understand the grievance and, in correspondence dated 5th July 2024 to the WRC, the Complainant explained that “I made the Minister of Defence aware of the implications of the ODF’s decision contained in ODF report No 4, not to make a determination on two of my cases of penalisation. The Minister in excepting the findings of the ODF’S report No 4 is now a party to penalisation of a whistleblower”.

The explanation in the complainant’s email of 5th July 2024 offers little insight as to how the respondent is meaningfully involved in this fact pattern. The complainant understands that the Ombudsman has produced the Impugned Report separately from the Minister but appears to be seeking in vague terms to suggest the Minister is somehow “a party to penalisation”.

The complainant appears to claim that he has made protected disclosures and complained of penalisation arising therefrom, that these were then investigated by the Ombudsman, and that the alleged inadequacies of the investigation by and Impugned Report of the Ombudsman also constitute further penalisation.

While the complainant is aggrieved by the Impugned Report, it is difficult to understand how, of itself, it could constitute penalisation as defined in section 3 of the 2014 Act. Further, it is difficult to understand how a claim for penalisation could be successfully levelled against an independent statutory body by an individual who has submitted a complaint to it.

For the foregoing reasons, it is submitted that the complainant ’s claim is not well-founded and is fundamentally misconceived in that he has identified as a Respondent a party who bears no relation to the fact pattern the substance of his claim.

The complainant’s representative submitted that the Ombudsman for the Defence Forces was not independent and that it was obliged to submit its report to the Minister for Defence for ‘consideration’.

The Minister for Defence then has a discretion to either accept it or reject it. Therefore, this brings the Minister within the ambit of a complaint of penalisation as his action in this case was a ‘continuation’ of the penalisation visited on the complainant in the Ombudsman’s report and subsequent actions within jurisdiction for this complaint.

The complainant’s representative defined the Minister’s actions as an act of unfairness.

He also said that by email to the WRC he had suggested that the Ombudsman be joined as a party to this complaint, but nothing was done.

There are two related preliminary issues in this case.

One is whether the named respondent (The Defence Forces (and/or the Minster for Defence, this was not clear) is accountable for any of the actions complained of by the complainant and is properly named a s a respondent.

The second is whether in respect of the specific one set out at the hearing; a prima facie case has been made out. In reality, this second issue will be the decisive point.

The various complaints are set out in the respondent’s submission above. It is clear from this and the oral submissions at the hearing that the central grievance is with the Ombudsman for the Defence Forces.

His first complaint was that the Ombudsman failed

“to investigate cases of penalisation of a whistleblower / reporter of wrong doing, submitted by me in 2016 and also the ODF’s failure to investigate a Redress of Wrongs complaint submitted by me in 2014”.

He continues that the Report of the Ombudsman of July 31st, 2023, itself constitutes an alleged act of penalisation. He criticises the general handling by the Ombudsman of the complaints and what he describes as the failure of the Ombudsman to make findings on certain issues itself constitutes alleged Penalisation.

He relies on three separate extracts from the Report as supporting alleged Penalisation; claiming that the Ombudsman’s determination of the report that a determination could not be made on an issue due to the absence of evidence and that this denied him an effective remedy and was therefore to his detriment “and is therefore penalisation as per the act”.

This continues in relation to a list of other aspects of the report from the Ombudsman as set out in the respondent ‘s submission above.

It is clear that none of these complaints relate to the named respondent in this case. So, what is the connection of the current respondent to all of this?

Although the complainant made no legal submission or offered any supporting legal argument, it appears that the Ombudsman for the Defence Forces is, unsurprisingly, obliged to send his report to the Minister for consideration, which in this case he did.

The closest action to an act alleged to be penalisation was the Minister’s simple receipt of the report, and failure to take some other unspecified action, which the complainant characterised as ‘a continuation’ of the penalisation.

There are a number of difficulties with this line of argument.

The most obvious one is whether a person receiving the Report of an independent statutory Ombudsman can, by virtue of that act alone be said to be capable of any ‘act of Penalisation’.

The complainant seemed at the hearing to downgrade the gravity of his description of the Minister’s actions (or omissions) on this score to that of an ‘an act of unfairness.’

All the Minister did was accept the findings of the Ombudsman, (or more precisely his conclusion that he could reach no findings.)

While it may have been open to him to do other than he did, the complainant’s disappointment that he did not do so does not render it even unfair, nor did it create an obligation on the Minister to take some other action, whatever that might be.

The complainant did not make any submissions on whether a Minister might have authority to do other than was done in this case, although even such authority to act would not necessarily create an obligation on him to take a particular course of action.

It does not render it an act of penalisation either. For an act of penalisation to occur there must be some recognisable detriment to a complainant, and simple disappointment that a Minister did not set aside the conclusions of a statutory Ombudsman does not remotely meet that bar.

Section 12 of the Act prohibits an employer from penalising or threatening to penalise an employee for having made a protected disclosure and Penalisation is defined by the Act as any direct or indirect act or omission which occurs in a work-related context, has been prompted by the making of a report and causes or may cause unjustified detriment to a worker.

Examples are suspension, lay-off or dismissal, demotion, loss of opportunity for promotion or withholding of promotion, transfer of duties, change of location or place of work, reduction in wages or change in working hours, the imposition or administering of any discipline, reprimand or other penalty (including a financial penalty), coercion, intimidation, harassment or ostracism; discrimination, disadvantage or unfair treatment; injury, damage or loss and threat of reprisal to name but a few.

These provide clear examples of both the nature and level of gravity of any retaliatory act. The alleged failure by the Minister to take some steps to alleviate the complainant’s perception of unfairness do not fall remotely in the category of action necessary to give rise to an act of penalisation; indeed, it is a preposterous suggestion.

It is made more so by the fact that the Ombudsman apparently  made no findings in respect of the matters raised by the complainant.

The relevant Act is the Ombudsman (Defence Forces (Act) 2004 where the interaction between the Ombudsman and the Minister is set out in section 7 of that Act.

Section 7 (2 ) and 7 (3) are as follows

(2) Where the Ombudsman conducts an investigation under this Act into an action that is the subject of a complaint, he or she shall send a statement in writing of the results of the investigation to—

(a) the Minister and to all persons concerned with the complaint, and

(b) any other person to whom he or she considers it appropriate to send the statement.

(3) Where, following an investigation under this Act into an action that is the subject of a complaint, it appears to the Ombudsman that the action adversely affected the complainant and is an action falling within subparagraphs (i) to (viii) of section 4(2)(b) he or she may recommend to the Minister—

(a) that the action be further considered,

(b) that measures or specified measures be taken to remedy, mitigate or alter the adverse effect of the action, or

(c) that the reasons for taking the action be given to the Ombudsman,

and, if the Ombudsman thinks fit to do so, he or she may request the Minister to notify him or her within a specified time of a response to the recommendation.

(4) Where the Ombudsman carries out an investigation under this Act into an action that is the subject of a complaint, he or she shall notify the complainant of the result of the investigation, the recommendation (if any) made under subsection (3) and the response (if any) made by the Minister.

(5) Where it appears to the Ombudsman that the measures taken or proposed to be taken in response to a recommendation under subsection (3) are not satisfactory, the Ombudsman may, if he or she so thinks fit, cause a special report on the case to be included in a report under subsection (7).

(6) The Ombudsman shall not make a finding or criticism adverse to a person under this section without having provided that person with an opportunity to consider, and make representations in respect of, the finding or criticism to the Ombudsman.

(7) The Ombudsman shall, as soon as may be, but not later than 4 months after the end of each year, cause a report on the performance of his or her functions under the Act to be laid before each House of the Oireachtas and may from time-to-time cause to be laid before each such House such other reports with respect to those functions as he or she thinks fit.

As noted, the Ombudsman apparently concluded that there was insufficient evidence to proceed with the complaint and accordingly the options that arise at subsection 3 above are not activated.

The Minister received a report simply to the effect that there were no grounds to proceed with the complaint.

I conclude therefore that to the extent that the respondent in this case has any relevance to the matters raised by the complainant the very limited facts necessary to ground a prima facie case have not been made out and the complaint is not well founded.

For the reasons set out above a prima facie case has not been made out against the respondent and Complaint CA-00060211-001 is not well founded.

Protected Disclosure, prima facie case.