October 03, 2022
The test for determining if an Employee has been penalised for making a Protected Disclosure requires firstly a finding that a Protected Disclosure has been made and secondly a determination that penalisation has occurred. This Case outlines that where an Employee has a reasonable belief – even if wrong, but reasonably mistaken – that this constitutes a Protected Disclosure being made. Penalisation is any act or omission that causes detriment to the Employee and in this Case, the fact that the Employee was not recruited for the subsequent contract nor selected for interview for this role, was deemed to constitute penalisation.
The Complainant - a Teacher, employed by the Respondent, a third level institution - made complaints to management on directions being given by management to breach copyright legislation and was consequently penalised in accordance with s5.3 of the Protected Disclosures Act 2014, as he was precluded from future recruitment opportunities. The Complainant was employed on a one-year fixed term contract as a Spanish and Economics teacher expiring on 31st August 2018 and the school was required to re-advertise this position under its own policies. The Complainant applied for the roles of Spanish, Business and Economics teacher on the Respondent’s website in 2018 for the academic year 2018/2019.
Summary of Complainant’s Case
The Complainant applied on the internal recruitment portal but was precluded from the interview for the Business Teacher role. There were two roles available, one business and economics role and a second business studies role. He was not called for interview for the business studies role. The following year there was a lack of teachers in business studies. If he was appointed to a role in the school for a second contract in a row, he would have obtained a contract of indefinite duration. He applied for other roles on the internal portal but never received any interviews.
He was silenced as a result of his actions and discredited, even though the Whole School Evaluation by the Department of Education upheld his concerns. As a result of not being retained in the school he had financial loss of €16,000 for one year, loss of pension, and lost progression on his pay grade and increments.
Summary of Respondent’s Case
The Complainant alleges that he made a Protected Disclosure and was penalised for this when he failed to be appointed to the post of Business Teacher. This allegation was first notified on 5 September 2018.
The Respondent does not dispute the Complainant made a Protected Disclosure, but rejects he was penalised for doing so. His grievance of unprofessional treatment by the Principal and other members of management was rejected.
The Complainant’s failure to be appointed to the post of Business and Economics teacher was wholly unrelated to any Protected Disclosure.
Findings and Conclusions
The Respondent accepts that the Complainant made a protected disclosure within the meaning of s5 of the Protected Disclosures Act 2014 regarding alleged breach of copyright in preparation of texts for students. He met with the Principal and other members of management around 14th November 2017 and outlined his concern about direct copying from texts and potential criminal offences. He also said teachers were being bullied into writing e-books which was not part of their contract.
The Complainant says he was pressurised to produce this material and he refused to use the copyright frauded material. This led to difficulties with other teachers. This issue was raised in a meeting between the Principal and the Respondent in November 2017 and he was told he was aggressive to another teacher. He disputed this, said he was upset about the pressure to produce the materials which was a breach of copyright and was never told this was required.
The school on the other hand say that the Complainant refused to produce materials requested for students. The Complainant says he was not being listened to and subsequently brought the issue to the attention of the Irish Copyright Licensing Agency and the Irish Educational Publishers Association on 27th November 2017. A whole school evaluation by the Department of Education and Skills also raised concerns about the school’s digital strategy and said the Principal should put in place a robust system for review of school created digital content which had not been adequately monitored.
A settlement was entered into by the school with the ICLA in May 2018 whereby content would be used until the end of the year and thereafter e-books would be used in the school. The Complainant lodged a grievance regarding unprofessional treatment by management in July 2018 which was not upheld. The Complainant was not on any performance review, and comments by the Principal about his contribution were flattering.
The Labour Court in Aidan & H McGrath Partnership v Monaghan PDD 2/2016  ELR 8 set out the test for determining if a worker has been penalised for making a protected disclosure, which requires firstly a finding that a protected disclosure has been made and secondly a determination that penalisation has occurred.
The Adjudicator found that the Complainant had made a Protected Disclosure within S5 (3) (a) of the Protected Disclosures Act 2014 as he had a reasonable belief (even if he was wrong, but reasonably mistaken) that a criminal offence of breach of copyright has been, was being or was likely to be committed in the school.
Penalisation is defined in s3 of the Protected Disclosures Act 2014 as any act or omission that affects a worker to the worker’s detriment and includes lay-off or dismissal, disadvantage, unfair treatment and loss. Penalisation also includes not being recruited or selected for interview.
The Complainant was employed on a one-year fixed term contract as a Spanish and Economics teacher expiring on 31st August 2018 and the school was required to re-advertise this position under its own policies. The Complainant applied for the roles of Spanish, Business and Economics teacher on the Respondents website in 2018 for the academic year 2018/2019.
Evidence was given by the Respondent that the Complainant was qualified for the role of Business and Economics teacher although ultimately unsuccessful for the position. He received a good probation review from the Principal and is highly qualified. From the evidence of the panel member, he was pipped for the post of Business and Economics Teacher by a small difference in the marks. The Complainant has given evidence that not withstanding applications for numerous schools on the Respondent’s website, he has not been invited to any other interviews following his protected disclosure.
The Respondent has not provided any explanation why the Complainant was not selected for interview for a post in the academic year 2018/2019 as a Business Studies Teacher in the school. Minutes provided for the parents’ association from September 2018 show there was a shortage of Business teachers in the school.
The Adjudicator noted that they could only conclude that the Complainant was penalised in not being interviewed for a role of Business Studies Teacher for the academic year 2018/2019 for which he was well qualified. A second fixed-term contract from the school would have provided him with a contract of indefinite duration, consequent security and as a result he has suffered detriment and financial loss.
The complaint of penalisation is well founded. The Respondent was directed to ensure that all future applications for teaching positions by the Complainant are given full consideration. Compensation of €43,425.00 was awarded, to be paid by the Respondent to the Complainant.