A retired government labour inspector has failed in a High Court action over what he claimed was penalisation of him within his employment because of his claims of a pro-employer bias in the Workplace Relations Commission (WRC).
George McLoughlin's claims under protected disclosure legislation were found, following an independent investigation on behalf of the Minister for Enterprise, Trade and Employment, to have been without substance.
However, he says that as a result of making the disclosure in October 2015, the WRC took active steps to have him dismissed by making “trumped up” allegations in respect of his integrity and competence to carry out his role as a labour inspector.
Hardship grounds
Mr McLoughlin (70), who retired at 65 despite his attempts to seek an extension on hardship grounds including that he needed medical attention following heart surgery, brought a High Court appeal against the Labour Court over the decisions to reject certain complaints he had made. The minister was a notice party.
Mr Justice Anthony Barr, on Thursday, rejected his case. The judge hoped it brought an end "to these acrimonious proceedings and allow the applicant (Mr McLoughlin) to enjoy his retirement in the company of his wife and daughters."
The judge said that since 1999 Mr McLoughlin worked as an inspector for the National Employee Rights Agency (NERA), later a part of the WRC, which he maintained largely involved the protection of vulnerable employees such as foreign workers.
In May 2015, he communicated concerns he had in relation to the holding of inspections by NERA and in particular, he was concerned by what he regarded as a pro-employer bias on the part of management of NERA and the WRC. He made his concerns known to then WRC director Kieran Mulvey and deputy director Padraig Dooley.
Protected disclosure
In September that year, he made a protected disclosure to the minister's secretary general who appointed Turlough O'Sullivan to investigate. Mr O'Sullivan found there was no substance to his complaint.
Prior to all this, in 2015, Mr McLoughlin had instituted defamation proceedings against an employer he was investigating as a result of his work as inspector. This led to the WRC lawyers advising that this could impact on his ability to act effectively as a labour inspector, and they said they were seeking legal advice on the matter.
Mr McLoughlin contended this move, and the later refusal to progress what was a disciplinary matter, amounted to a penalisation. He also claimed a failure to accede to request to extend his employment beyond 65 was another penalisation. He further claimed he had been denied access to the WRC information and technology system.
In his High Court action, he maintained these penalisations were the result of him having made the protected disclosure.
He alleged that in one decision made against him, it was because of alleged bias on the part of Kevin Foley, the chairman of a division of the Labour Court, who had previously worked with Kieran Mulvey when they were both on the Labour Relations Commission (which later became the WRC).
Claims
The Labour Court rejected his claims, including on grounds that the suspension of a disciplinary process prompted by the defamation proceedings Mr McLoughlin had brought were related to him having been on sick leave until August 2016 and the fact that he would be retiring in January 2017. A separate unfair dismissal claim in relation to his retirement was also rejected in 2018.
Mr Justice Barr was satisfied the Labour Court was entitled to reach the conclusion that his complaint in relation to retention (in his job) after the age of 65 was made outside the time limit.
In relation to his claim of bias, the judge said Mr Mulvey and Mr Foley were well known in industrial relations circles, and it was inevitable that one or other of them could have to deal with issues that may involve the other involving a particular dispute before him.
The court was not persuaded this could give rise to an apprehension of objective bias in relation to Mr Foley’s chairmanship of the Labour Court hearings in 2018, he said.
He said the evidence suggested Mr McLoughlin is a decent man who conscientiously carried out his duties as an inspector. He had convinced himself he was dismissed as a result of steps taken by the WRC, but he was not in fact dismissed, and retired at 65, the judge said.
