Case Number: ADJ-00019848. Workplace Relations Commission

• Date: 06 November 2019
• Docket Number: ADJ-00019848
• Court: Workplace Relations Commission
• Parties: A Civil Servant v A Government Department

Procedure:

On the 14th February 2019, the complainant referred complaints pursuant to the Payment of Wages Act and the Protected Disclosures Act. The complaints were referred to adjudication on the 29th March 2019. The complainant attended the adjudication. The respondent was represented by Sarah-Jane Hillery BL, instructed by the Chief State Solicitor’s Office. Four representatives attended on its behalf.

While the second complaint refers to the Protected Disclosures Act, it was registered as a complaint pursuant to section 55M of the Health Act. I have amended the report to reflect that it is a complaint pursuant to the Second Schedule of the Protected Disclosures Act and not section 55M of the Health Act.

In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.

Background:

The complainant is a civil servant, who asserts that he has been penalised by his employer, a Government Department. The respondent denies the claims.

Summary of Complainant’s Case:

The complainant outlined that his list of detriments was open-ended. They include receiving documents via his data access request on the day before his Labour Court appeal hearing. He said that the respondent held back releasing the documents until this time. He requested the information in mid-November and the respondent took a further two months to provide the information. Referring to the ‘but for’ test, he outlined that he was not required to prove retaliation. The complainant said that he has been on sick leave since January 2018. This related to the stress of working in the civil service while being a whistleblower. He said that the respondent had showed “capricious disregard” for the law. Referring to the documents disclosed by the respondent, he said that there were threats to cut off his mobile phone. He agreed that he had attended work on a Saturday morning, and this was to prepare for the Labour Court hearing. He had required access to work emails. He compared this to Sgt McCabe’s access to PULSE. The complainant said that he had been looking to access information to which he was entitled. He asked why would the respondent disable access if they were not covering something up. The complainant could not access the workplace or email from the 19th or 20th September and there was the threat to cancel his work mobile. The complainant said he had sought to return to work in November 2018 and asked the respondent to comply with international best practice regarding whistleblowers. The response was that this would not be facilitated. The complainant was instructed not to return to work and was instead referred to occupational health. The complainant said that his access was restored in February 2019 and he had incurred detriment from November to February. He has not returned to work and this is open ended detriment. The complainant expressed his unhappiness with the email of 9th October and the reference to “If [the complainant] is fit to be in work then he should be attending work”. He said that this statement did not reflect the law and his illness certificate related to work. He said that he faced the threat of dismissal if he took up employment elsewhere. In respect of his return to work, the complainant said that he wished for risk assessments to be carried out as part of this process. He sought information and feedback on his disclosures, but he had not been able to meet anyone about this. He referred to the Labour Court decision in PD/18/1 where the employer referred disclosures for investigation by an outside person. The complainant said that there were multiple failures in the respondent protected disclosure policy. There was no data of reports made about the Chief Executive and no mention of the audit committee. The procedure was not visible in the respondent and provided that managers investigated other managers. He said that the respondent policy was deficient when compared to other Departments and asked for a finding that the policy is deficient. The complainant said that disciplinary action was threatened in November 2018. This was not part of the earlier adjudication. He said that it had been awkward to cross-examine witnesses at the last hearing and then to attend work. The complainant said that the June 2018 letter was an act of penalisation as the respondent could have continued to pay full sick pay. The respondent and the HR Manager in particular should have exercised discretion and not doing so amounted to detriment. The Chief Medical Officer should have had regard to his whistleblowing in assessing his case. The complainant said that the respondent was trying to starve him out. The complainant said that he had been on reduced pay between mid-March and mid-November 2018 and restored to full pay on the 21st November 2018. He incurred a shortfall of €22,000 and could not pay his mortgage. The complainant said that he met the Chief Medical Officer in February 2019 who said that his issues were IR issues. The complainant was deemed fit for work, but he has not returned to work because of what happened at the Labour Court hearing. He said that he has received full pay since then. The complainant referred to the guidance from the Australian state of Victoria regarding the need for the employer to ‘be proactive’ and ‘actively monitor’ the situation of a whistleblower in the workplace. The complainant concluded that it would not be safe for him to return to the workplace. The complainant referred to the email of the 25th January in relation to the Chief Medical Officer. The letter threatens disciplinary action. The complainant said that he submitted a new data access request after the hearing before the Labour Court. The documentation arrived just before this adjudication. The complainant outlined that, because of the whistleblowing, the head of audit and the CEO must sign off on any disciplinary action against a whistleblower. The complainant said that the concessions made by the respondent at the Labour Court represented a detriment as he had been telling them for two years about these issues. The concession relates the department no longer challenging that a protected disclosure was made. In legal submissions, the complainant referred to Meadows v Minister for Justice Equality and Law Reform [2010] IESC 3 and the need for “anxious scrutiny” or a “hard look” in a case such as this. He referred to ADJ 1721 where a protected disclosure policy was ordered to be amended. Referring to PD/18/1, the complainant said that there was a duty of care to continue an investigation into a protected disclosure while the employee was on sick leave. In respect of the Payment of Wages claim, the complainant said that this is in the amount of €22,000. He submitted that the whole amount is within time. In reply to the respondent, the complainant said that the decision in respect of his critical illness application was one for the HR Manager following the CMO’s report. The complainant decided that an appeal would be pointless. He said that it was not regular to terminate people’s access to workplace. He needed access to work email as an accounting regulatory body sent him information at this address. He was threatened with disciplinary action and his livelihood was threatened. The complainant said that the protected disclosures relate to issues he had identified as an accountant when looking at the respondent’s capital assets and estimates. In closing comments, the complainant said that he would like the respondent’s letter of 2012 withdrawn as this stated that his disclosures were not in the public interest. He said that the Workplace Relations Commission should be concerned that the respondent had breached data protection and had initially refused and then delayed access. He said that he was a dissenter and a critical voice, but that dissent was not disloyalty and should not result in detriment.

Summary of Respondent’s Case:

In respect of the Payment of Wages claim, the respondent outlined that it dealt with the complainant’s absence according to the relevant Circular. The...