A county council employee who claimed he was effectively demoted for alleging that his employer was involved in financial irregularities has lost his whistleblowing case at the Workplace Relations Commission (the “WRC”).

The decision illustrates that while the Protected Disclosures Act 2014 (the “2014 Act”) gives strong protection to whistleblowers, there is still a burden of proof to be overcome by employees wishing to avail of the protections afforded by the Act.

Background

The recently reported case of A Senior Official v A Local Authority (ADJ-00001721) was brought by a local authority employee.  He was described in the case as a “senior and longstanding official” who represented the council in question on the board of directors of a limited company that operated “a high profile sporting project in the area” between 2007 and 2011.  The media has since reported that the sporting project in question was the former League of Ireland club Sporting Fingal FC, and Fingal County Council has since confirmed that it was the local authority named as respondent in the case.  The company operating the project went into liquidation in 2011, and the project ended with the closure of Sporting Fingal FC.

The claimant alleged that his employer, the county council “had made disguised payments and that there had been accounting irregularities relating to the expenditure of Council monies”. The claim under the 2014 Act related to disclosures made by the claimant by way of letter to the CEO in May 2014, and subsequently to a government minister in March 2015, in which the claimant made allegations in relation to the financial exposure of the county council to the sporting venture and also “regarding the veracity of statements made by or on behalf of the to members of the Oireachtas, the media and other parties”.

An investigation into the disclosures concluded that there was nothing to investigate.  

The claimant asserted that he was then subjected to penalisation for making protected disclosures regarding issues that arose in the course of his employment.  The claimant gave evidence that a year later he was transferred to another department in the county council. He contended that this transfer amounted to a demotion and fell within the definition of a penalisation under the Act because, whereas in his previous role he managed 82 staff, he now managed just six.  The respondent submitted that there had not been a demotion, that the transfer had nothing to do with the employee’s disclosures, and that it was simply a reallocation of resources and restructuring in the normal course, which affected more employees than just the claimant.

Findings

The Adjudication Officer held that there was insufficient evidence to conclude that the transfer of the whistleblower was because of, or in retaliation to, the protected disclosures.  He stated:

“I find that the transfer of the complainant is too remote to meet the ‘but for’ test outlined by the Labour Court and applied to penalisation claims made pursuant to the Protected Disclosures Act. I make this finding for the following reasons. It is clear that the CEO of the respondent is entitled to re-organise and re-assign the cohort of senior managers within the organisation, of which the complainant is one. Given that the Chief Executive Officer has an overarching perspective on the work and future needs of the respondent, it is difficult to second-guess such a reordering of senior management.” 

Comment

This decision again follows recent Labour Court guidance on the ‘but for’ test, which states that in order for a claim to be successful it must be determined that the act comprising the alleged penalisation would not have occurred “but for” the protected disclosure.  In order to succeed with a claim it is essential that any prospective complainant overcome this burden.  

Despite the employee’s unsuccessful claim in this case, it is best practice for employers to put in place an effective whistleblowing policy that complies with the 2014 Act.  The presence of such a policy affords an employer the best chance of maintaining control of an alleged protected disclosure and of defending a later claim if necessary.

Contributed by Jeffrey Greene

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