The High Court has rejected a veterinary practitioner’s appeal over the Department of Agriculture, Food and the Marine’s handling of a protected disclosure, upholding the Labour Court’s decision that he had not established penalisation.
The appeal concerned a disclosure made by Andrew Conway on 14 May 2018 about the appointment of veterinary inspectors. He alleged that the appointment process breached an EU regulation. The Department’s policy named Resolve Ireland as a recipient of disclosures; it forwarded his submission to the Department, which acknowledged it and said it might constitute a protected disclosure.
Conway later sought updates from a Department personnel officer, but received no reply to four emails between June and September 2018. He complained to the Workplace Relations Commission that he had been penalised because the disclosure was being ignored and was not being investigated. The WRC adjudication officer initially decided in his favour. On the Department’s appeal, the Labour Court set that decision aside, finding Conway had not identified an act or omission that affected him to his detriment.
In the High Court, Conway argued that the Department’s failure to investigate promptly could itself amount to detriment, and that the Labour Court should have considered the Department’s obligations under the Protected Disclosures Act, the relevant code and guidance, and its own policy. The Department accepted there had been a failure to deal with the disclosure speedily, but said it was not deliberate and that no resulting harm had been shown.
Justice Hyland held that the Labour Court had made a factual finding, after hearing Conway’s evidence, that he had not established detriment or penalisation. The High Court found no basis to overturn it. Frustration and annoyance at waiting for a response did not, without evidence of an impact on Conway’s situation, establish the harm or damage required for detriment under the Act.
The judgment also held that the Labour Court’s role was limited to deciding whether the individual complainant had been penalised. It had no jurisdiction to assess, in the abstract, whether the Department’s response or procedures were adequate where penalisation had not been established. The Act did not create a cause of action for failure to investigate a disclosure in accordance with an existing policy.
A Department investigation had separately found that Conway’s 2018 disclosure was not processed under official procedures and should have been acknowledged, but described the failure as an oversight without ulterior motive. The High Court rejected Conway’s fair-procedures argument as it had not been raised in the appeal notice. It dismissed all grounds of appeal and upheld the Labour Court’s 13 December 2019 decision.