Case Number: ADJ-00033968. Workplace Relations Commission

• Docket Number: ADJ-00033968
• Hearing Date: 19 October 2021
• Date: 01 November 2021
• Court: Workplace Relations Commission
• Respondent: Brothers of Charity Southern Services Brothers of Charity Southern Services

ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00033968

Parties:

	Complainant	Respondent
Parties	Ann Holden	Brothers of Charity Southern Services Brothers of Charity Southern Services

Representatives Self-Represented Sophie Crosbie

Complaints:

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-00045106-001	07/07/2021
Complaint seeking adjudication by the Workplace Relations Commission under Schedule 2 of the Protected Disclosures Act 2014	CA-00045106-002	07/07/2021
Complaint seeking adjudication by the Workplace Relations Commission under Schedule 2 of the Protected Disclosures Act 2014.	CA-00045106-003	07/07/2021

Date of Adjudication Hearing: 19/10/2021

Workplace Relations Commission Adjudication Officer: Thomas O'Driscoll

Procedure:

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 complaint. This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designated the Workplace Relations Commission as a body empowered to hold remote hearings. The Complainant and the Respondent submitted written submissions and documents prior to the hearing. The Respondent also sent in a short submission subsequent to the hearing, which was copied to the Complainant.

Preliminary Issues:

The Respondent raised two preliminary issues, namely that the matter can only be heard under the Health Act 2004, as amended, and alluded to in the Complaint Form and Workplace Relations Commission (WRC) correspondence. Secondly, that the cognisable period for the complaints of penalisation is the six-month period prior to the lodgement of the Claim

Preliminary Issues: Summary of Respondents Case:

Jurisdiction:

The Respondent submits that the Adjudication Officer is bound by the complaint as set out under the Health Act 2004 and does not have the authority to stray into matters beyond that, a fact well established in case law. The Respondent refers to the case of Killeen v Director of Public Prosecutions [1997] 3 I.R. where it was stated that the Court is bound by what jurisdiction it has and must act accordingly.

The Respondent further relied on the decision of the Supreme Court in Brannigan v the Equality Tribunal and County Louth VEC {2016] IESC 40 wherein McKechnie J stated: -

“It is both a trite and historical principle of law that a creature of statute must live by the statute. Its jurisdiction is found solely within the provisions of the enabling Act. It has no inherent capacity, unlike say, say, that of a constitutional court. It is therefore bound by what has been conferred on it. It has no further competence and it cannot create, add to or enlarge the jurisdiction so vested in it.”

The Respondent submits that the Adjudication Officer only has jurisdiction to hear the case under the Health Act, 2004 as amended, and does not have jurisdiction to hear the case under the Protected Disclosures Act 2014.

Cognisable Period for Penalisation Claim:

The Respondent submitted that the cognisable period for these claims is the six-month period between 7 January 2021 and 6 July 2021. The Respondent submits that no other alleged acts of detrimental treatment fall to be considered in line with the relevant statutory provisions. Reliance was placed on the decision of the High Court in The Minister for Finance v The Civil and Public Service Union [2006] IEHC 14wherein Laffoy J states that it is reasonable to assume the Oireachtas envisaged that the Labour Court would manage its caseload in a sensible manner and that where a decision on a net issue might resolve a dispute that it would deal with that issue as a preliminary point.

Preliminary Issues – Summary of Complainants Case:

Jurisdiction:

It was the Complainant’s case that she always intended to seek to have her complaints adjudicated upon under the Protected Disclosures Act 2014. She submits that she ticked the box for protected disclosures under the Health Act 2004 in the WRC form. She claims this was an act of inadvertence as she worked in the Health sector and she believed this was the appropriate box to tick.

Cognisable Period for Penalisation Claim:

The Complainant accepted that the cognisable period for alleged penalisation was in the six months period, as allowed for under both the Health Act 2004, as amended, and the Protected Disclosures Act 2014.

Findings and Conclusions – Preliminary Issues: Jurisdiction:

Section 41(5)(a) of Workplace Relations Act 2015 imposes the following statutory duties on the Adjudication Officer, who shall:

‘(i) inquire into the complaint or dispute,

(ii) give the parties to the complaint or dispute an opportunity to—

be heard by the adjudication officer, and

present to the adjudication officer any evidence relevant to the complaint or dispute,

(iii) make a decision in relation to the complaint or dispute in accordance with the relevant redress provision, and

(iv) give the parties to the complaint or dispute a copy of that decision in writing.’

In Doyle v Private Residential Tenancies Board [2015] IEHC 724, Baker J held that the duty to inquire entailed ‘the power to characterise or formulate the dispute, to request documentation and information, and to transmit the relevant documentation and information to each party. In doing so it identifies the issues.’

InGalway-Mayo Institute of Technology v Employment Appeals Tribunal [2007] IEHC 210, the High Court set out a broad role for a quasi-judicial decision maker in defining the confines of a...