Conor Williamson v David Stone and Carol Stone t/a Ashton Dog Pound and Warden Service came before an Adjudicator of the Workplace Relations Commission (“WRC”) in October 2021 and again in June 2022.
Facts: The Complainant commenced employment as a Dog Warden with the Respondent in July 2017. On 26th July 2020, the Complainant made a complaint to the Respondent in relation to the euthanasia of a number of dogs in their kennels. As the Respondent did not appear to act on this complaint, he then reported it to the Gardai a number of days later. His claim to the WRC was that these complaints constituted Protected Disclosures and that he was penalised by the Respondent due to making them. The Complainant provided a number of examples of the penalisation he claimed to have suffered, including that he was subjected to unwarranted disciplinary processes by the Respondent due to his disclosures. He also told the WRC that he had been offered a severance agreement by the Respondent which contained a non-disclosure agreement which he did not accept.
The Respondent maintained that its actions were justified and did not amount to penalisation. The Respondent informed the WRC that it was during an investigation meeting that the Complainant informed the Investigator that he was a whistleblower. According to the Respondent, the Complainant also frequently informed the Director of the Respondent that he was a whistleblower, but that, apart from the Complainant’s claims in this regard, the Respondent was not aware if the Complainant was in fact a whistleblower at all. The Respondent’s view was that the Complainant believed that by positioning himself as a whistleblower he would be protected from normal performance and disciplinary procedures.
Preliminary Issue: When lodging his complaint form, the Complainant selected the Criminal Justice Act 2011 (the “2011 Act”) as amended from the ”drop down” menu as the legislation under which to bring his claim. Counsel for the Complainant submitted that the non-statutory WRC complaint form should be amended to reflect that the complaint was in fact a claim under the Protected Disclosures Act 2014 (the “2014 Act”) rather than under the 2011 Act and that this amendment could be applied without altering the narrative set out in the complaint form in any way. It was argued on behalf of the Complainant that the scope of both Acts is very similar save for one provision in the respective definitions of “penalisation” which was not relevant to the facts of this case. However, the particular disclosures in this case (relating to animal welfare and veterinary pharmaceutical practices) would be encompassed by the 2014 Act, but not the 2011 Act.
Counsel for the Complainant relied on County Louth VEC v Equality Tribunal [2009] IEHC 370 as authority for it being permissible to change a non-mandatory or non-statutory administrative form where the justice of the case requires it and the general nature of the case remains the same.
The Respondent also referred to County Louth VEC v Equality Tribunal, but argued that the justice of the case did not require the amendment to be made in circumstances where the Complainant was legally represented and was in receipt of legal advice at the time of lodging his complaint with the WRC.
Decision: The Adjudicator noted that although the complaint had been lodged under the Criminal Justice Act, 2011, it appeared that the case was in fact being advanced instead under the Protected Disclosures legislation.
The Adjudicator referred to McGovern J. in County Louth VEC v Equality Tribunal where she stated (obiter) as follows:
“I accept the submission on behalf of the respondent that the form EE1 was only intended to set out, in broad outline, the nature of the complaint. If it is permissible in court proceedings to amend pleadings where the justice of the case requires it, then a fortiori, it should be permissible to amend a claim as set out in a form such as the EE1, so long as the general nature of the complaint (in this case, discrimination on grounds of sexual orientation) remains the same.”
The Adjudicator was satisfied that the general nature of the complaint remained the same and that the correction was an administrative one. She was also satisfied that the justice of the case required the amendment. The Adjudicator therefore dealt with the complaint under the Protected Disclosures Act, 2014.
Having considered the provisions set out in section 5 and section 3 of the 2014 Act, the Adjudicator set out the proofs required as follows:
- “has a protected disclosure under the Act been made
- has the worker been penalised by his/her employer arising from the making of that disclosure
- has the worker suffered detriment
- is there a causal connection between the making of a protected disclosure and the detriment suffered”
The Adjudicator accepted that the reporting of breaches of animal welfare and veterinary pharmaceutical practices constituted Protected Disclosures under the 2014 Act. Considering the evidence before her, the Adjudicator stated in her findings that she found the Complainant’s evidence to be “cogent and convincing” and that upon review of a number of statements made against the Complainant by some of his colleagues in relation to bullying and harassment allegations, they appeared to be “contrived” and “rehearsed” and to have “the hallmarks of an orchestrated campaign by management to intimidate and bully the complainant.”
The Adjudicator found that the Complainant was penalised for having made a Protected Disclosure contrary to the 2014 Act. She noted the “numerous allegations that the complainant was subjected to by the respondent after making the protected disclosure” and was satisfied that the Complainant was subjected to “a spurious investigation and disciplinary process and a suspension of work which was not warranted which amounts to penalisation under the Act.” She noted that although the Complainant had been employed by the Respondent since 2017, many of the allegations that resulted in the initiation of the disciplinary processes appeared to have arisen after the Protected Disclosure made by the Complainant to his employer and the Gardai.
The Adjudicator also found it “noteworthy” that the Respondent had provided the Complainant with a severance agreement containing a non-disclosure clause which she found had been given to him in an attempt to “exit” him from the Respondent organisation.
The Adjudicator awarded the Complainant €18,000 in compensation in respect of the penalisation he suffered on foot of his Protected Disclosures.
Takeaway for Employers: All reports of wrongdoing should be taken seriously. It is particularly important to ensure disciplinary processes are followed fairly and transparently when dealing with an employee who has made what may amount to a Protected Disclosure to avoid accusations of penalisation. Employers should ensure that they are in a position to demonstrate that the initiation of an investigation or disciplinary process was warranted and was unrelated to any Protected Disclosure.
Authors – Nicola MacCarthy, Jenny Wakely and Anne O’Connell
28th October 2022