Michael Clifford: Questions around laws designed to protect

The case of a prison officer who made a protected disclosure lends itself to the question of whether related legislation provides enough protections, writes Michael Clifford.

The Protected Disclosure Act 2014 was to herald a new era, where employees, in particular, could point out malpractice without fear of reprisal. The Act is designed to provide protections, hence the name.

How robust those protections are remains to be seen. For instance, how easy is it to identify whether or not a whistleblower has been subjected to some form of reprisal?

One case that lends itself to this questions is that of a prison officer who has featured on these pages over the last six months. He wishes to remain anonymous, so we’ll call him PO Pest.

In March 2016, he made a protected disclosure about bullying, intimidation, and the failure to interview him following a serious assault by a prisoner. All of this, he maintained, had its origins in a complaint he made in November 2014 about the promotion of untrained staff and misuse of public funds.

The Department of Justice refused to accept that he had made a disclosure which would entitle him to protections.

PO Pest appealed and retired judge William Early was appointed to adjudicate. Early found that PO Pest had made a protected disclosure and that he “was treated unfairly and isolated for making the disclosures and that his opportunities for career advancement were deliberately curtailed by the IPS (Irish Prison Service)”.

That should have cleared things up, but it didn’t. In a subsequent Work Relations Commission hearing over PO Pest’s treatment, the IPS would not accept that he had made a protected disclosure.

The hearing was adjourned in May and the following month, PO Pest’s legal team was informed that the IPS had changed its position and now accepted the disclosure. The hearing is scheduled to resume this month.

All of that is bad enough, but in recent weeks it has come to light that the prison officer is complaining of ongoing issues which he believes are directly connected to his whistleblowing.

The prison officer has detailed how he estimates that his earnings over three years have been depleted by around €65,000, as a result of his circumstances, ensuring he is not entitled to various allowances and expense.

Apart from that, he has complained of occasions in which he was docked pay to which he was legally entitled.

These included two days in August this year where he was docked pay as annual leave which had been initially requested but not taken up. Another day’s pay accrued in September when he had been on a work-assigned course and not paid.

Fianna Fáil TD John McGuinness, in a Dáil question on October 17, raised issues relating to this whistleblower’s pay.

Justice Minister Charlie Flanagan replied: “I am informed that the individual is being paid in line with applicable civil service regulations.”

This wasn’t entirely accurate, as he had been docked pay to which he was entitled.

Within two weeks of the matter featuring in the Dáil, it got resolved. PO Pest was informed that he would be “reimbursed for these two days” (in August) and, in respect of the training day, “the payment should have been made”.

There have been other issues over the last six months. In May, he applied for a promotion. His application was assessed by a staff member of whom he had complained about in his protected disclosure as being among those who had bullied and impeded his promotion.

PO Pest was not successful in his application. However, he has serious issues with the process. “To be clear, I am not making a complaint of whether I should be promoted,” he related to the Department of Justice, outlining what he regards as further penalisation.

“My complaint is whether the Irish Prison Service were correct when they allowed a person, whom I had accused of bullying me, to assess my application for promotion after the external review found that I was deliberately withheld career advancement for making a protected disclosure.”

He maintains that since he first made his complaint, he has been denied promotion on four occasions. The most recent of these was to a post for which he applied last August.

The post has not been filled in the interim. PO Pest believes this failure to fill it is prompted by the fact there is a reluctance to appoint him, yet a failure to do so would open up an appeal process which would be embarrassing for management.

These matters have all been raised by the prison officer in correspondence with the Department of Justice in recent months.

He is of the opinion that despite the ruling of Early and the initial positive response within the service, the isolation suffered as a result of his complaints has continued.

He recently referred to a letter sent to him in the wake of Early’s ruling from the director general of the prison service, who wanted to “put on the record his acknowledgement of the valuable service you have provided to this organisation in pointing out the deficiencies in operations and in recommending improvements”.

The prison officer puts this in context: “My reward for this action is further isolation of a type not even experienced by Irish Prison Service personnel accused of criminal activity.”

His fresh complaints are complicated by the ongoing WRC process, but there remains a fundamental question as to whether he continues to be targeted because he blew the whistle on malpractice.

Already, it has been deemed necessary to get an outside agent — retired judge Early — to adjudicate on his case. Where to from here? Will it be necessary to get another agent to come in and examine whether he has been further bullied since the last outside agent deemed he had been?

That this man would have any basis for believing that he is not being protected by a law enacted to protect those who speak out is a cause for serious worry.

A spokesman for the Irish Prison Service said they would be making no comment on the case.



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