Facts: In the WRC case of Padraic O’Toole v. Department of Agriculture, Food & The Marine...

Facts: In the WRC case of Padraic O’Toole v. Department of Agriculture, Food & The Marine (ADJ-00045437), the Complainant alleged that he was penalised by the Respondent for making two protected disclosures.

The Complainant commenced employment with the Respondent in March 2018 as a General Operative and was responsible for the day to day running and maintenance of the marina at Rosaveel, Co. Galway. He carried out the role of Marina Superintendent from 2019 and April 2020 he took up the role of Harbourmaster in an acting up capacity until the new Harbourmaster was appointed in March 2021.

The Complainant alleged that he made a protected disclosure in February 2022. He uncovered discrepancies in the payment of overtime to members of staff at the harbour. The Complainant alleged that he brought these concerns to the Harbourmaster regarding the payment of overtime when it was not due and he was met with an extremely hostile response.

The Complainant alleged that he made a second protected disclosure on 23rd June 2022 at a meeting with Mr Clancy, the Chief Engineer. During this meeting the Complainant raised a number of detailed allegations of wrongdoings committed by the Harbourmaster. The Respondent dealt with these allegations under the Disciplinary Policy against the Harbourmaster rather than the Protected Disclosure Policy. Only one of the allegations was upheld against the Harbourmaster, which was driving a government vehicle with a non-government person in it.

The Respondent rejected that the February 2022 was a protected disclosure but admitted that the 23 June 2022 was a protected disclosure.

The Complainant did not refer to the period of penalisation in his claim form. However, he alleged in his written submissions that “the penalisation to which he was subjected continued from March 2022 up to the termination of his employment in August 2023.”

The Complainant only lodged his complaint form to the WRC on 21st April 2023.

Preliminary Point: The Respondent interestingly relied on the judgement of the High Court in HSE v. McDermott [2014] IEHC 331 to argue that the Complainant��s claim was out of time. The Respondent, relied upon the following statement in the judgment of Hogan J. –

“For the purposes of this limitation period, everything turns, accordingly, on the manner in which the complaint is framed by the employee….It follows, therefore, that if an employer has been making deduction X from the monthly salary of the employee since January 2010, a complaint which relates to deductions made from January, 2014 onwards and which is presented to the Rights Commissioner in June, 2014 will still be in time for the purposes of s.6(4). If, on the other hand, the complaint were to have been framed in a different manner, such that it related to the period from January, 2010 onwards, it would then have been out of time.”

The Respondent alleged that the complaint as framed by the Complainant in his submission, as quoted above, was overbroad and therefore applying the above, the case  should be deemed to be out of time in its entirety.

The Complainant argued that the WRC has jurisdiction to investigate any alleged penalisation that occurred within six months from the date of the referral of the complaint and, on extension, within 12 months.

The Adjudicator, Ewa Sobanska, distinguished HSE v McDermott judgement on the basis that the judgement related to Payment of Wages Act which is different in origin, nature and intent to the Protected Disclosures Act. However, this decision is questionable and may be appealed. The wording of s.6(4) of the Payment of Wages Act and Section 41(6) of the Workplace Relations Act 2015 which sets out the time limit for this claim under the Protected Disclosure Act are relatively the same –

S.6(4) of Payment of Wages Act:

“A rights commissioner shall not entertain a complaint under this section unless it is presented to him within the period of 6 months beginning on the date of the contravention to which the complaint relates…” (emphasis added).

S.41(6) of Workplace Relations Act:

"Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.” (emphasis added)

The Complainant had applied for an extension of the time limit to include penalisation that occurred over 6 months before the complaint was lodged with the WRC. The Adjudicator refused the Complainant’s application as she did not accept that the Complainant’s desire to resolve the matter internally constituted reasonable grounds why it was not presented in time. She made reference to the fact that the Complainant's solicitor’s letters never indicated that the Complainant was considering to refer his claim to the WRC but rather referred to making an application to the High Court.

Therefore, the Adjudicator held that she would only consider evidence on the allegations of penalisation in the period from 22 October 2022 to 21 April 2023.

It will be interesting to see if this decision is appealed by the Respondent on the preliminary point alone.

Decision: The Adjudicator applied the burden of proof that the penalisation will be deemed to be as a result of a protected disclosure having been made, unless the employer proves that the act or omission concerned (being the penalisation) was based on “duly justified grounds”.

However, she first had to establish whether the alleged adverse treatment within the specified period amounted to “penalisation” within the meaning of the Protected Disclosures Act. While most of the adverse treatment was outside the time period determined by the Adjudicator, she held that the request for the Complainant pay fees for his private vessel amounted to penalisation. The reasoning was that staff were never charged for their private vessels and the Complainant was never requested to pay fees from 2018 until 11th October 2022. While 11th October 2022 was outside the period of the claim, a reminder was sent on 1 December 2022 and subsequent reminder on 19th April 2023 threatening legal proceedings against the Complainant if he did not pay by 26 April 2023. The Adjudicator also found that this penalisation was due to the protected disclosure as the Harbourmaster had not requested the Complainant to pay fees for his private vessel before he made the protected disclosure in June 2022.

When deciding on the level of compensation to award the Complainant, the Adjudicator referred to the long title of the Protected Disclosures Act and stated that “[T]he Act is intended to act as a deterrent to employers and others from taking retaliatory action against such workers …”. The Complainant was awarded €25,000 in compensation, which may seem disproportionate in respect of the penalisation but not when regard is had to the intention of the Act.

Takeaway for Employers: The award in this case seems very high and much greater than what is currently being awarded for discriminatory treatment. Therefore, employers must be pro-active in ensuring that they have a Protected Disclosures Policy in place and that training is given to all their employees in relation to it. Furthermore, employers must ensure that any complaints of adverse treatment is investigated and addressed as soon as possible and not to make any predetermined assumptions. Failure to do this could be costly.

Link  - https://workplacerelations.ie/en/cases/2024/april/adj-00045437.html

Author – Anne O’Connell