Wednesday, 6 February 2019

Questions (74)

Louise O'Reilly


74. Deputy Louise O'Reilly asked the Minister for Public Expenditure and Reform if constructive criticism by an employee in the public sector, which is in the interest of addressing failures within a public sector workplace, is viewed in the same manner as a whistleblower; the action an employee can take if their concerns are dealt with in a persecutory manner; and if he will make a statement on the matter. [5812/19]

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Written answers (Question to Public)

Section 5(3) of the Protected Disclosures Act 2014 provides for a broadly based set of relevant wrongdoings that workers in the public or private sector may report which qualify for the protections of the Act. These are: that an offence has been, is being or is likely to be committed; that a person has failed, is failing or is likely to fail to comply with any legal obligation, other than one arising under the worker's contract of employment or other contract whereby the worker undertakes to do or perform personally any work or services; that a miscarriage of justice has occurred, is occurring or is likely to occur; that the health or safety of any individual has been, is being or is likely to be endangered; that the environment has been, is being or is likely to be damaged; that an unlawful or otherwise improper use of funds or resources of a public body, or of other public money, has occurred, is occurring or is likely to occur; that an act or omission by or on behalf of a public body is oppressive, discriminatory or grossly negligent or constitutes gross mismanagement; and that information tending to show any matter falling within any of the above categories has been, is being or is likely to be concealed or destroyed.

It is not necessary for a worker to explicitly state that they are making a protected disclosure when they make a disclosure which they believe to come within the relevant wrongdoings outlined above. If it is unclear whether the matter qualifies as a protected disclosure, the employer should treat it as such until they are satisfied that it does not so qualify. In any event, providing that the worker discloses information relating to wrongdoing in an appropriate manner, and based on a reasonable belief, no question of penalisation should arise. Furthermore, section 5 of the Act provides that in proceedings involving an issue as to whether a disclosure is a protected disclosure it shall be presumed, until the contrary is proved, that it is.

The Act provides for a number of remedies for workers who believe that they have suffered penalisation as a result of making a protected disclosure. Those remedies apply to workers in both the public and private sectors. Workers who are direct employees are provided with access to the normal industrial dispute mechanisms of the State, including the Workplace Relations Commission and the Labour Court, and the compensation payable under those mechanisms is increased in respect of persons penalised for having made a protected disclosure. An employee dismissed for having made a protected disclosure can claim unfair dismissal, regardless of their length of service, and may also make a claim for interim relief to the Circuit Court pending final determination of their case. The Act also provides a right of action in tort for a person who has suffered detriment as a result of a protected disclosure, and immunity from civil liability other than in defamation actions.