In a recent case published by the Workplace Relations Commission this month, An Acting Inspector v A Transport Company, (ADJ-00023015), the Complainant (employee) was awarded  €7,500 under the Protected Disclosures Act.

Background

The Complainant (employee) commenced employment with the Respondent (employer) on 22 April, 2013 and worked as an Acting Inspector and Bus Driver. He subsequently applied for a full-time Inspector’s role advertised as AVL Service Controller when the competition arose on 11 March, 2018. The Complainant and his two colleagues, who had also been unsuccessful in the competition, attended a feedback meeting on 28 February, 2018. The Complainant was not given any scores or documentation in relation to his performance at the interview and was ultimately told that the information had been lost when he made a data access request.

The Complainant and his two colleagues made a protected disclosure to the Respondent by letter dated 19 September, 2018 in relation to the alleged wrongdoing which they had witnessed regarding the misappropriation of the recruitment and selection process together with the aggressive behaviour of some members of management within the organisation. The Complainant was unsuccessful with the application and was informed of same on 28 August, 2018.

The Complainant claims that he was subjected to penalisation by the Respondent contrary to Section 12 of the Protected Disclosures Act 2014 after having made a protected disclosure.The Respondent initiated a meeting with the Complainant and his two colleagues on 20 March, 2019 to discuss the outcome of the protected disclosure. The Complainant contended that the investigation of the protected disclosure took five months and the manner in which it was conducted was lacking in transparency on the basis that there were no terms of reference; no methodology; no detail or rationale of the findings; no reference to the internal policy and no right of appeal.

The Complainant submitted that he was subjected to three acts of penalisation as a result of having made the protected disclosure, (a) the manner in which the Respondent handled his protected disclosure and the hostile and aggressive manner (b) that he was required to re-apply for the position that he already completed on a regular basis and (c) that the recently appointed Acting Inspectors are now being trained on the AVL system.

The Respondent disputed the claim that the Complainant was subjected to penalisation for having made a protected disclosure. The Respondent contended that it was normal practice for employees who have been carrying out Acting Supervisor duties to re-apply for such roles as it facilitated opportunities for other employees to apply for such roles. The Respondent also disputed the Complainant’s contention that he has been “blacklisted” in any manner within the company as a result of making the protected disclosure.

Findings and Conclusion

The Adjudicator first noted in the Labour Court case of Aidan & Henrietta McGrath Partnership -v- Anna Monaghan PDDI62 that: “The Court must first establish that a protected disclosure has been made before it can examine whether a penalisation within the meaning of the Act has occurred”. The case further noted ” the detriment giving rise to the complaint must have been incurred because of, or in retaliation for, the Complainant having committed a protected act. This suggests that where there is more than one causal factor in the chain of events leading to the detriment complained of the commission of a protected act must be an operative cause in the sense that “but for” the Complainant having committed the protected act he or she would not have suffered the detriment. This involves a consideration of the motive or reasons which influenced the decision maker in imposing the impugned detriment.”

The Adjudicator accepted the Complainant’s evidence that the inappropriate treatment to which he was subjected at the meeting was profoundly distressing for him and led him to believe that his reputation and future prospects within the organisation had been is some way tarnished or damaged. He concluded

“I take the view that it is not unreasonable to conclude that the operative cause for the said detrimental treatment of the Complainant at this meeting was the fact of him having made the protected disclosure”

The employee was ultimately awarded €7,500 in compensation.