Complainant

Respondent

Parties

Frank  McDonald

Siptu Trade Union

Representatives

Gerard Kennedy

Kieran O'Brien, Bowler Geraghty & Company

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-00061724-001

22/02/2024

The complainant is a former member of the respondent trade union.

This complaint was received by the Workplace Relations Commission on 22nd February 2024.

At the commencement of the hearing the complainant’s representative requested an adjournment as he had only recently come on notice. The requested adjournment was not granted.

·         This is a complaint submitted by Mr.Frank McDonnell against the trade union SIPTU that his rights under the Protected Disclosures Acts to be protected from acts of penalisation have been fundamentally compromised by the actions and omissions of the respondent organisation.

·         It is Mr.McDonnell's contention that he has standing under the act to make this complaint as he acted in a voluntary capacity for SIPTU for over 50 years and is therefore covered under section 4(g) of the Protected Disclosures (Amendment) Act 2022.

·         Mr. McDonnell is relying on his letter issued to Mr. Tony Kenny, Personnel Officer, SIPTU, dated the 27/01/2020 as evidence of having made a protected disclosure. ln the body of that letter Mr. McDonnell sets out the following allegation:

"In essence I am making a complaint that Ms. Deirdre Canty willfully and deliberately interfered with the sanctioning of a roll -over of the Community Employment Scheme sponsored by St Munchin's Action Centre. I am further alleging that Ms. Canty approached the then servicing organiser and requested that the roll-over would be delayed as a means of applying pressure to the management of St Munchin's Action Centre in a case where Ms. Canty was representing an individual member of staff. I am in a position to confirm that the official in question is quite prepared to give evidence in that regard.

As a result of the delay in the project's roll-over the scheme's funding was suspended by the Department of Social Protection resulting in all staff being issued protective notice. The management of the scheme had to apply to the banks for overdraft facilities in order to cover the cost of staff wages. It should be borne in mind that those staff were all SIPTU members."

·         It is Mr. McDonnell's position that the above complaint sets out a relevant wrongdoing to bring the matter within the remit of the Protected Disclosures Acts and within the jurisdiction of the Adjudication Service of the WRC.

Background/ Arguments

·         Mr. Frank McDonnell is a life- long member of SIPTU. As a result of his active membership of the trade union he has held many voluntary positions within the organisation including elected shop steward, elected Branch President of the Limerick No 1 Branch SIPTU, Chairperson of the Limerick No 1 Branch Benevolent Committee, Chairperson and member of the Standing Orders Committees at numerous national and regional SIPTU Conferences and President and founding member of the SIPTU Limerick District Council. In addition, he would have acted as the coordinator for numerous national officers’ elections and national pay ballots within the Limerick environs. Mr. McDonnell also undertook voluntary work for St Munchin's Action Centre. In 2017 it was brought to Mr. McDonnell's attention by the management of the Centre that they were experiencing inexplicable and inordinate delays in securing SIPTU's approval for the roll-over of the Centre's Community Employment Scheme. At the time the Centre was involved with a prolonged industrial relations dispute with a staff member who was being formally represented by SIPTU. As part of the then existing requirements set by the Department of Social Protection the Centre was required to apply and seek the permission of the relevant trade union to roll -over a community employment scheme. As a result of the nature of the work undertaken by the scheme participants the relevant trade union in their case was SIPTU.

·         The schemes are funded by the Department of Social Protection and that funding was dependent on the appropriate sign off by the trade union involved. Prior to 2017 St Munchin's had never experienced any difficulties with securing SIPTU's approval for any of its schemes. The withholding of the necessary approval placed the continuation of the entire project and the employment of 162 people in jeopardy. As a result of the fact that SIPTU did not issue the required authorisation for the roll over, the Department of Social Protection suspended the projects funding, and management were forced to seek overdraft facilities with their banking providers in order to meet wage obligations.

·         Mr. McDonnell raised the matter internally with SIPTU through the Limerick District Council and eventually following representations from Mr. McDonnell, delegates to the District Council and Management and staff of St Munchin's the required approval was issued by SIPTU in December 2017.Mr. McDonnell following the issuing of the roll over approval sought answers as to why there had been an inordinate delay in the processing of the Centre’s approval for the scheme but did not receive an acceptable response. In late 2019 Mr. McDonnell was advised by the now retired servicing official who would normally have the responsibility for scheme approvals that he had withheld the approval at the request of his colleague Ms. Deirdre Canty. As a result of this disclosure Mr. McDonnell set out the complaint referred to. The particulars of Mr. McDonnells protected disclosure have never, to his knowledge, been the subject of any investigation by the respondent.

·         It is the case that prior to raising these matters Mr. McDonnell would have free access to the SIPTU building. This is no longer the case. On more than one occasion since raising the issue of the Community Employment Scheme roll-over, he has been denied access to the SIPTU Limerick Offices. In addition, he has been verbally accosted by some staff members when seeking or gaining access to the SIPTU building.

·         In addition, he has been photographed without permission within the premises by some staff members while attempting to carry out his functions as the Chairperson of the Benevolent Committee. These actions by representatives of SIPTU and the failure of SIPTU management to appropriately deal with these matters have created a situation whereby Mr. McDonnell feels totally intimidated and undermined. Mr. McDonnell following a lifetime of voluntary service to SIPTU has been deliberately ostracised and is no longer allowed access to his union's premises without fear of further intimidation. This in Mr. McDonnells view presents a continuum of intimidatory behaviour by SIPTU and brings his complaint within the relevant time frames of the Act as the intimidatory behaviour that he has been exposed to is ongoing.

·         The provisions of the Protected Disclosures Acts clearly identify that any act of intimidation arising from a protected disclosure is an act of penalisation. Siptu bears the responsibility for the actions of its staff in that regard. No other SIPTU voluntary activist in the Limerick area has been treated in a similar fashion and it is Mr. McDonnells contention that he would not have been the subject of the repeated and ongoing intimidation that he has been subjected to but for the fact that he had made a protected disclosure.

·         It is with a heavy heart that Mr. McDonnell is presenting this complaint today. He has given a lifetime to working on behalf of this union and given that long and loyal service had an expectation that the complaint he made in good faith would be appropriately dealt with by SIPTU. Instead, he finds that his dedication to the principles espoused by his trade union mean nothing to SIPTU as an organisation. Instead of being protected by his union for doing what was right he finds himself vilified and the subject of intimidation. Mr. McDonnell has been betrayed by the organisation that he spent his whole working life supporting.

·         We are requesting that the Adjudicator would determine that Mr. McDonnells complaint is well founded and further determine that Mr. McDonnell should be appropriately compensated for the egregious breach of the protections afforded him under the Protected Disclosures Acts.

Background

·         The Complainant submits that he made a protected disclosure, by way of letter dated 27 January 2020, to the Respondent's Mr Tony Kenny.

·         The Complaint submits, in summary, that his allegations that:

(a)Ms Deirdre Canty wilfully anddeliberately interfered withthe sanctioning ofa roll-over of the Community Employment Scheme sponsored by St. Munchin’s Action Centre, and;

(b) Ms Canty approached the servicing organiser and requested that the relevant roll-over be delayed as a means of applying pressure to the management of St. Munchin's Action Centre, constitute protected disclosures within the meaning of the Protected Disclosures Act 2014-2022.

·         The Complainant further submits that by reason of his having made a protected disclosure, he was penalised. The Complainant complains, in the abstract, that he was "deliberately ostracised and is no longer allowed access to his union's premises without fear of further intimidation".

PreliminaryObjection

·         Without prejudice to the generality of the immediately foregoing, it is submitted on behalf of the Respondent, by way of preliminary objection, that the complaint being advanced by the Complainant has not been made within the prescribed statutory time limits and that, in those circumstances, the Workplace Relations Commission does not have jurisdiction to hear and determine the complaint and the complaint ought to be dismissed.

·         The Complainant has failed to particularise the occurrence of the alleged acts of penalisation, fundamentally prejudicing the Respondent's ability to defend the within proceedings. It is, however, maintained by the Respondent that the alleged acts of penalisation (which are denied) referred to by the Complainant relate to the period 2019/2020 and, in those circumstances, the complaint has not been advanced by the Complainant within the prescribed statutory time limits.

·         Insofar as the Complainant vaguely alleges that the alleged acts of penalisation are continuing, this is denied by the Respondent.

·         Without prejudice to the foregoing, and if the complaint has been submitted to the WRC in time, the necessary provisions of the Protected Disclosures Acts that would give the WRC the jurisdiction to hear the complainant's claim have not been properly engaged.

·         For the purposes of the Act, a "protected disclosure" means a disclosure of relevant information made by a worker in the manner prescribed by the Protected Disclosures Act.

·         For the purposes of the 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.

·         What constitutes a "relevant wrongdoing" is prescribed by the Act as follows:

(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 workers 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,

(h)    that a breach has occurred, is occurring or is likely to occur, or

(i)      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 or an attempt has been, is being or is likely to be made to conceal or destroy such information.

·         It is submitted on behalf of the Respondent that the information on which the Complainant relies in grounding his claim that he has made a protected disclosure is, in the first instance, untrue. If, however, such information was in fact true, it did not come to the Complainant's knowledge in a "work related context" and therefore, the alleged protected disclosure is not a qualifying protected disclosure within the meaning of the Acts in circumstances where the information the subject matter of the alleged protected disclosure does not constitute "relevant information".

·         Further, and without prejudice to the foregoing, if the relevant information was obtained by the Complainant in a "work related context", the relevant information does not tend to show the occurrence of a relevant wrongdoing within the meaning of the Acts and, therefore, the alleged protected disclosure is not a qualifying protected disclosure within the meaning of the Acts.

The Alleged Acts of Penalisation

·         The Complainant has failed to particularise, in any detail, the acts which he alleges constitute penalisation, save that he references being denied access to the Respondent's building and that he has been intimidated.

·         These allegations are denied by the Respondent.

·         It is submitted on behalf of the Respondent that following the occurrence of a data breach, a GDPR policy was introduced by the Respondent to mitigate against the risk of such an incident re-occurring. As part of this policy, members of the Union are now permitted to enter the building either by appointment, or in the company of one of the Respondent's staff members. This policy applies equally to all members, including Complainant herein.

·         insofar as the Complainant maintains that he has been intimidated by the Respondent, its servant and/or agents, this is denied. The Respondent has not particularised any incident of intimidation, however, the Adjudicator's attention is drawn to the fact that a number of complaints have been made by the Respondent's staff members as against the Complainant relating to his manner when attending at the Respondent's office. The Complainant has raised various cross grievances arising therefrom and all grievances have been the subject of an internal investigation. It is denied that the Complainant has been subjected to intimidation or that he has been ostracised as alleged or at all.

·         The Respondent reserves the right to rely upon further submissions, whether factual or legal, oral or in writing during the course of the hearing of the within complaint.

Preliminary Objection.

Respondent management have presented a preliminary objection as follows:

·         Without prejudice to the generality of the immediately foregoing, it is submitted on behalf of the Respondent, by way of preliminary objection, that the complaint being advanced by the Complainant has not been made within the prescribed statutory time limits and that, in those circumstances, the Workplace Relations Commission does not have jurisdiction to hear and determine the complaint and the complaint ought to be dismissed.

·         The Complainant has failed to particularise the occurrence of the alleged acts of penalisation, fundamentally prejudicing the Respondent's ability to defend the within proceedings. It is, however, maintained by the Respondent that the alleged acts of penalisation (which are denied) referred to by the Complainant relate to the period 2019/2020 and, in those circumstances, the complaint has not been advanced by the Complainant within the prescribed statutory time limits.

·         Insofar as the Complainant vaguely alleges that the alleged acts of penalisation are continuing, this is denied by the Respondent.

At the hearing of the complaint the complainant struggled to provide particulars of the alleged penalisation and accepted when it was put to him that his complaints and the alleged penalisation were 2 years plus old.

Section 41 (6) of the Workplace Relations Act 2015 reads as follows:

(6) 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.

In the instant case the Complainant alleges to have made a Protected Disclosure on 27th January 2020, his complaint to the Workplace Relations Commission was received on 22nd February 2024 and the subject matter of his complaint is as far back as 2017.

I conclude that the complaint is out of time and therefore I have no jurisdiction to hear the complaint.

I conclude that the complaint is out of time and therefore I have no jurisdiction to hear the complaint.

Protected Disclosures Act 2014.