Conway v The Department of Agriculture, Food and the Marine
| Jurisdiction | Ireland |
| Judge | Ms. Justice Hyland |
| Judgment Date | 14 December 2020 |
| Neutral Citation | [2020] IEHC 665 |
| Court | High Court |
| Docket Number | RECORD NO: 2020/22 MCA |
| Date | 14 December 2020 |
IN THE MATTER OF AN APPEAL PURSUANT TO SECTION 12 AND SCHEDULE 2 OF THE PROTECTED DISCLOSURES ACT 2014
[2020] IEHC 665
Hyland
RECORD NO: 2020/22 MCA
THE HIGH COURT
This case raises two questions: whether the Labour Court acted lawfully in holding that a failure by an employer to act upon a protected disclosure under the Protected Disclosures Act 2014 Act (the “2014 Act”) did not constitute penalisation within the meaning of the 2014 Act; and whether the Labour Court erred in failing to take account of the respondent's compliance with its obligations pursuant to the 2014 Act, the Code of Practice established by S.I. 464 of 2015 on protected disclosures, the Guidance to employers adopted pursuant to s. 21(1) of the Act in determining penalisation and the respondent's own policy.
For the reasons set out in this judgment, I find that in respect of the first question, the Labour Court found as a matter of fact, after having inquired into the matter, that the appellant had not suffered detriment and had not been penalised for having made a protected disclosure. No basis has been advanced to me to justify setting aside those findings of fact.
In respect of the second question, I find that the Labour Court were correct in holding that the treatment by the respondent of the protected disclosure were not matters within its jurisdiction, in circumstances where it had already concluded no penalisation as defined by s.12 had been suffered by the appellant, and where the Act does not confer a jurisdiction on the Labour Court to evaluate the adequacy of an employer's response where penalisation has not been established by the complainant.
For those reasons, I reject the appeal.
The appellant, Mr. Conway, is a veterinary practitioner and was previously engaged as a veterinary inspector by the respondent. On 26 October 2016 the Public Appointments Service was engaged by the respondent to carry out a competition for the appointment of a panel of veterinary inspectors. In March 2017 the appellant was invited for interview. In May 2017 the appellant was placed at number 87 on the panel in the order of merit.
On 17 May 2017 the appellant made a protected disclosure not the subject of these proceedings to the respondent alleging age discrimination in the competition.
On 14 May 2018 the appellant made the protected disclosure the subject matter of these proceedings relating to the appointment of vets by the respondent, on the basis that the appointment process was in breach of EC regulation 854/2004. That disclosure was made to accompany known as “Resolve Ireland”, the company that had been nominated by the respondent in its protected disclosures policy to receive complaints. The appellant used the reporting form set out at Appendix A of the respondent's protected disclosures policy and procedure.
On 17 May 2018 the protected disclosure was received by the respondent from Resolve Ireland.
On 29 May 2018 Mr Gordon Conroy of the respondent acknowledged receipt of the appellant's protected disclosure in the following terms:
“I have now fully reviewed your submission submitted under the Department's Protected Disclosure Policy set out in response to the 2014 Protected Disclosure Act. My role in this regard is to ascertain whether the allegations may constitute relevant wrongdoings as defined by the Act. In the event that I decided some or all do indeed constitute relevant wrongdoings, as a Protected Disclosure, the Department is committed to protecting the person who makes the disclosure, in this case you, against possible future actions as a consequence of having made this disclosure as set out in the DAFM policy and guidance.
My view is that information provided by you in your submission received by Resolve Ireland on May 14 may constitute a protected disclosure. In light of this and in line with the relevant legislation and policy in place you have the:
– right of protection in the event that you are unfairly dismissed, and
– right of protection if you are otherwise penalised or threatened with “penalisation”
for having made this protected disclosure.
I will now send the submission you have made under the protected disclosure act to Mr Kevin Galligan, personnel officer DAF M. Mr Galligan will consider whether further actions are warranted in light of your submission. I have requested that Mr Galligan communicate the outcome of any potential actions directly to you”.
Between 20 June 2018 and 2 July 2018 the appellant sent two emails to Mr Conroy stating he had heard nothing from Mr Galligan. Mr. Conroy replied on 20 June saying he had forwarded the appellant's mail on to Mr. Galligan.
On 3 July 2018 the appellant emailed Mr Galligan sending a copy of the correspondence with Mr Conroy.
On 11 July 2018 the appellant made a complaint to the WRC alleging penalisation for having made a protected disclosure of 17 of May 2017 (not the subject of these proceedings).
On 20 August 2018 the appellant wrote to Mr Galligan seeking a response on how his protected disclosure of May 2018 would be addressed.
On 29 August 2018 a reminder email was sent by the appellant to Mr Galligan.
On 31 August 2018 an email from the appellant to Mr Galligan was sent alleging penalisation for having made a protected disclosure.
On 17 September 2018 the appellant lodged the complaint the subject matters of the within proceedings.
On 6 March 2019 the WRC adjudication hearing took place in relation to the within complaint. Due to a misunderstanding about dates the respondent was not represented at that hearing but nonetheless the hearing went ahead and a decision in the appellant's favour was made by the adjudication officer on 16 July 2019.
On 26 August 2019 the notice of appeal of the respondent to the Labour Court was submitted. On 6 December 2019 the Labour Court hearing in relation to the complaint took place. The appellant gave evidence. No witness from the respondent gave evidence.
The determination of the Labour Court was issued on 13 December 2019.
On 9 January 2020 the appellant made a formal complaint about the conduct of Mr Galligan. That complaint was referred by the respondent to Mr McMahon its corporate affairs division for investigation.
On 23 January 2020 an appeal on a point of law was filed in the High Court against the decision of the Labour Court.
On 30 September 2020 the report of Mr McMahon was published, which concluded that the May 2018 disclosure was not processed in accordance with official procedures and would be reviewed by a different official. It was found that Mr Galligan ought to have acknowledged the correspondence but that throughout the same period the Department was actively involved in dealing with related complaints and disclosures from the appellant. The report acknowledged there was an oversight but no ulterior motive.
The purpose of the 2014 Act is stated to be “ An Act to make provision for and in connection with the protection of persons from the taking of action against them in respect of the making of certain disclosures in the public interest and for connected purposes”.
The Act defines penalisation at section 3 as follows:
“penalisation” means 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;”
There is also a definition of detriment specifically in the context of s.13 of the 2014 act. Section 13 is entitled “ Tort action for suffering detriment because of making protected disclosure”. Section 13 (1) provides:
If a person causes detriment to another person because the other person or third person made a protected disclosure, the person to whom the detriment is caused has a right of action in tort against the person by whom the detriment is caused.
Subsection 3 defines “detriment” in subsection 1 as including: -
(a) coercion, intimidation or harassment,
(b) discrimination, disadvantage or adverse treatment in relation to employment (or prospective employment),
(c) injury, damage or loss, and
(d) threat of reprisal.
Section 12 is entitled “ Other protection of employees from penalisation for having made protected disclosure”. Section 12 (1) provides as follows:
An employer shall not penalise or threaten penalisation against an employee, or cause or permit any other person to penalise or threaten penalisation against an employee, for having made a protected disclosure”
Section 21 is headed up “ Internal procedures for protected disclosures made by workers employed by public bodies”. It provides as follows:
(1) Every public body shall establish and maintain procedures for the making of protected disclosures by workers who are or were employed by the public body and for dealing with such disclosures.
(2) The public body shall provide to workers employed by the body written information relating to the procedures established and maintained under subsection (1).
(3) The Minister may issue guidance for the purpose of assisting public bodies in the performance of their functions under subsection (1) and may from time to time revise or re-issue it.
(4) Public bodies shall have regard...
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