Dáil debates

Tuesday, 10 July 2018

Topical Issue Debate

Protected Disclosures

6:35 pm

Photo of Alan KellyAlan Kelly (Tipperary, Labour)
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There is a review ongoing by the Department of Public Expenditure and Reform of how protected disclosures legislation is operating.

The case shows the legislation to be operating in a shambolic way when it comes to Cork Institute of Technology. A protected disclosure was made from CIT in 2012 and was acknowledged as such – I have a copy of the email acknowledging it. The disclosure was repeated in 2017. It was mishandled across the board, including by the Higher Education Authority and the Department. Evidence was given before the Committee of Public Accounts but I do not believe it stands up to scrutiny. The Minister for Education and Skills, Deputy Bruton, the Minister of State, Deputy Mitchell O'Connor, and the Minister for Public Expenditure and Reform, Deputy Donohoe, are all aware of this.

The individual in the case who took out the protected disclosure has been out of work for more than four years without an income. This is not the way these issues should be treated.

The president of the college has not dealt with this issue appropriately. The HEA has not dealt with it appropriately and, dare I say it, the Department has not dealt with it appropriately. All along, this person has been without an income because of doing the right thing. The Minister of State is well aware of this case. It is strange for myself and the two Deputies opposite. We come from Tipperary, Kilkenny and Sligo and yet we are raising an issue relating to Cork Institute of Technology.

I appeal to the Minister of State to use her offices to deal with this issue and give faith back to people so they can make protected disclosures.

6:45 pm

Photo of John McGuinnessJohn McGuinness (Carlow-Kilkenny, Fianna Fail)
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I have read over the minutes of the meeting at which this was raised. My experience of this case informs me that the Committee of Public Accounts was grossly misled, perhaps deliberately. I can say as much from my experience of the case and from reading the minutes.

The vice president of this particular institution is responsible for finance and human resources. He acknowledges receipt of a protected disclosure. He suggested ways and means of dealing with the protected disclosure. He made no effort whatsoever to protect the individual involved. As a result, the person has had no income since 2014. That is not the way to do business and it is certainly not the way to put information before the Committee of Public Accounts.

I have looked down through the minutes. Many statements are incorrect and misleading. There is an onus now on the Department to accept the disclosure made in 2012 and to acknowledge that it happened. I have it before me in writing. The Department should take the necessary steps to compensate the person concerned and to deal with the issues raised. They were raised by someone who has experience in governance and good practice and who was a decent employee of the college. Yet, that person is being blackguarded by the same college and by the Department. It is not right and the Minister of State should intervene.

Photo of Marc MacSharryMarc MacSharry (Sligo-Leitrim, Fianna Fail)
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The vice president of Cork Institute of Technology said the college attempted to engage but that the individual did not engage. That is a lie, quite frankly. This person went to the chair of the board of CIT, the chairman of the audit committee, the vice president of strategy, the head of the school and faculty, the vice president and the registrar. All these approaches occurred in 2012 and 2013 but no action was taken. In August 2017 the person requested to meet the new president. This was refused and the person was not granted a meeting. In June 2017, the person wrote to each member of the board of CIT. This was clearly ignored and was not reflected in the minutes of the board. The vice president said before the Committee of Public Accounts that he accepted that risk management as a methodology within CIT was not well-developed at this stage. At the same meeting, the president stated that serious failures in governance existed.

How can we expect anyone to have confidence in this institution? This is about protecting taxpayers' money. No matter who is in government, it is a case of circling the wagons and throwing the whistleblower under the bus. That is what we are doing: we are throwing someone under the bus and leaving that person with no salary. On the one hand we encourage all people to come forward and tell the truth. That is only so long as they know that when the do the shutters will come down in lightening fashion. Instead of a policy of delay, deny and defend, the Minister of State should do what is right by this person and the taxpayer.

Photo of Seán Ó FearghaílSeán Ó Fearghaíl (Kildare South, Ceann Comhairle)
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It is probably not wise, Deputy, to accuse someone outside the House of lying.

Photo of Marc MacSharryMarc MacSharry (Sligo-Leitrim, Fianna Fail)
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I am only being guided by the minutes and the facts in terms of the documents.

Photo of Seán Ó FearghaílSeán Ó Fearghaíl (Kildare South, Ceann Comhairle)
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Maybe you are, but it is still not-----

Photo of Marc MacSharryMarc MacSharry (Sligo-Leitrim, Fianna Fail)
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Sometimes privilege exists to be used in the appropriate fashion and I do not take it back. Thank you.

Photo of Seán Ó FearghaílSeán Ó Fearghaíl (Kildare South, Ceann Comhairle)
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I take it that you do not take it back, Deputy, but I am still suggesting to you that it is not a wise course of action.

Photo of Marc MacSharryMarc MacSharry (Sligo-Leitrim, Fianna Fail)
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Thank you for your suggestion, a Cheann Comhairle. I know you have my best interests at heart but I am thinking about the taxpayer.

Photo of Seán Ó FearghaílSeán Ó Fearghaíl (Kildare South, Ceann Comhairle)
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We are all concerned for the taxpayer.

Photo of Mary Mitchell O'ConnorMary Mitchell O'Connor (Dún Laoghaire, Fine Gael)
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I thank Deputy Alan Kelly, Deputy John McGuinness and Deputy Marc MacSharry for raising this issue.

The Deputies will be aware that the Protected Disclosures Act 2014 provides a detailed and comprehensive legal framework to allow any worker who is penalised for making a protected disclosure to secure redress. The Act is supplemented by the procedures that all public bodies are required to put in place under section 21 for the making of protected disclosures and for dealing with such disclosures.

The Department of Education and Skills operates within this legal framework when dealing with protected disclosures. The Deputies will appreciate that there is a legal responsibility on the Department to protect the identity of the individual who makes a protected disclosure. While respecting this legal responsibility, I am happy to provide the Deputies with an update on the specific issue raised today. I can confirm that the Department received a protected disclosure relating to CIT in May 2017. There have been 12 steps to the process since then. In line with the agreed procedures within the Department, the disclosure was referred to the Higher Education Authority for examination. Under step two, I understand officials from the HEA made initial contact with Cork Institute of Technology in July 2017 to provide the officials with an outline of the allegations, but in a manner to protect the identity of the discloser consistent with the strict confidentiality provisions set out in section 16. The HEA has also met the discloser to discuss the allegations in more detail.

Under step three, following an initial response from CIT, officials from the HEA met the discloser to discuss the disclosures in more detail. Under step four there was subsequent correspondence between the HEA and the discloser arising from that meeting. Under step five, in light of the additional information arising from this subsequent engagement with the discloser, the HEA has recently taken further steps to examine the issues raised. Specifically, under step seven, the HEA wrote to the chair of the governing body of CIT on 29 June seeking the definitive response from CIT to the allegations.

Under step eight, the HEA has asked CIT to respond to a specific set of questions relating to the disclosures. The HEA sought confirmation that CIT is satisfied that academic staff in the department in question are not engaged in any external activities that are in conflict with their roles in CIT. The HEA sought confirmation that academic staff in that department have sought the necessary approvals to engage in external employment outside CIT. The HEA sought confirmation that CIT is satisfied that there has been no breach of the code of conduct for employees by academic staff in that department. The HEA sought details of the actions taken by CIT to investigate any previous or similar complaints or allegations made about those same issues. The HEA also asked whether CIT has suffered any adverse financial impact as a result of the practices that are alleged to have happened in the protected disclosure.

Photo of Alan KellyAlan Kelly (Tipperary, Labour)
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The Department and the HEA know that this has been going on for six years. The Minister of State provided information about the response from the HEA on 20 July. Although welcome, this does not acknowledge the fact that this has been an issue since 2012.

I have in my possession, as do my two colleagues, the email showing that this disclosure goes back to 2012. This person has been out of work since 2014. No one with knowledge about this case would make a protected disclosure. I appeal to the Minister of State to use her offices to ensure the person who made the disclosure is reinstated. The HEA has responded to the requests of the Minister of State.

Will she, please, get them to look at what they said in their last three appearances related to Cork Institute of Technology before the Committee of Public Accounts, the last being only two months ago when they were asked if there had been any protective disclosure prior to 2017, even under draft policy, and they said no. This issue must be put to bed. The Minister of State knows about it, as does the Department, the HEA and the president, as well as the college and its board, although, for some reason, it is not included in its minutes. They have all known about it for some time. It is disgraceful that it has not been dealt with one way or the other in six years.

6:55 pm

Photo of John McGuinnessJohn McGuinness (Carlow-Kilkenny, Fianna Fail)
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I respect the Minister of State's intervention; however, it is clear from the response that neither she, CIT nor the Higher Education Authority, HEA, is dealing with the reasons the whistleblower made the protected disclosure in the first place. It is because she was treated badly having made the disclosure. The whistleblower needs to be put back in employment and there must be recognition of what was done in the context of the information she gave to Mr. Paul Gallagher. Bearing in mind how the legislation is meant to protect whistleblowers, like the draft policy of the college in 2012, they should, in conscience, pay the whistleblower from 2014 onwards. That is what is stated in the legislation. Will the Minister of State ensure the HEA which, incidentally, takes its time in responding to Deputies will make sure she is put back on salary and compensated, dating back to 2014?

For the record, I gave the protected disclosure directly to the Minister, Deputy Richard Bruton. I passed it to him, but nothing really constructive has happened since.

Photo of Marc MacSharryMarc MacSharry (Sligo-Leitrim, Fianna Fail)
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In order that there can be no doubt, I can testify that the whistleblower is sane, highly competent and skilled in the area of governance and that she was thrown under the bus. I will give the email to which Deputy Alan Kelly referred to the Minister of State as soon as I conclude in order that she will definitely have it.

We need to start by paying the person's salary and backdating it. The Department of Education and Skills botched its response to the second disclosure in 2017, to which Deputy John McGuinness referred. It contacted CIT through back channels without telling the whistleblower, which was entirely against its own code of conduct. The wagons were circled to see what story the Department and CIT could put on it to save their faces and that of the HEA. CIT continue to dream up ways of destroying the individual who, as the other Deputies have noted, has not worked since. CIT has failed to comply with the request made by the HEA and the Department in May that it sort out any whistleblower in May 2014 prior to the passing of the Act. It did not do so. What we need is goodwill on the part of the HEA and the Department, as well as closure. They need to take control of the matter, with CIT, and get this done. Ultimately, the whistleblower did it with only taxpayers in mind. It is time we did the right thing by them.

Photo of Mary Mitchell O'ConnorMary Mitchell O'Connor (Dún Laoghaire, Fine Gael)
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One of the Deputies mentioned the date of 20 July. We will receive informed responses to the questions we put to CIT by that date.

The Department is satisfied that the issues raised in the protected disclosure received by it in May 2017 are being addressed by the HEA in accordance with the provisions of the Protected Disclosures Act, by which I am bound.

Photo of John McGuinnessJohn McGuinness (Carlow-Kilkenny, Fianna Fail)
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Only now; they covered it up.

Photo of Mary Mitchell O'ConnorMary Mitchell O'Connor (Dún Laoghaire, Fine Gael)
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My understanding is-----

Photo of Alan KellyAlan Kelly (Tipperary, Labour)
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What is the first sentence?

Photo of Seán Ó FearghaílSeán Ó Fearghaíl (Kildare South, Ceann Comhairle)
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Will the Deputies, please, let the Minister of State continue?

Photo of Mary Mitchell O'ConnorMary Mitchell O'Connor (Dún Laoghaire, Fine Gael)
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As I said in my first sentence, the Department received the protected disclosure in May 2017. The discloser has been kept informed of progress. CIT has been asked to respond by 20 July to the allegations made. The HEA, not the Minister, will determine the appropriate next steps to be taken based on the response.

Returning to what the Deputies asked about the meeting of the Committee of Public Accounts, I am not aware of any aspect of the record of that meeting on 24 May that needs to be corrected. The meeting discussed a number of issues related to CIT, including whether it had received a protected disclosure prior to 2017. The Protected Disclosures Act has retrospective effect to the extent that redress can be sought by a worker for penalisation for making a protected disclosure made before the legislation was commenced. Any concern raised internally, prior to July 2014, when the Protected Disclosure Act came into force, would have been a matter for CIT to deal with, whatever policies and procedures were in place at the time.

Photo of Alan KellyAlan Kelly (Tipperary, Labour)
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The Minister will have the emails.

Photo of John McGuinnessJohn McGuinness (Carlow-Kilkenny, Fianna Fail)
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They have them.

Photo of Mary Mitchell O'ConnorMary Mitchell O'Connor (Dún Laoghaire, Fine Gael)
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The Department is not aware of any specific instance where the record of the Committee of Public Accounts needs to be amended arising from anything stated by an official of the Department or the HEA on 24 May.

Photo of Alan KellyAlan Kelly (Tipperary, Labour)
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We are going to give them to the Minister of State.

Photo of Seán Ó FearghaílSeán Ó Fearghaíl (Kildare South, Ceann Comhairle)
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Please, Deputy.

Photo of Mary Mitchell O'ConnorMary Mitchell O'Connor (Dún Laoghaire, Fine Gael)
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May I finish? It is a matter for the representatives of CIT to determine whether there is a need to correct any statement they made at the meeting.

Photo of Seán Ó FearghaílSeán Ó Fearghaíl (Kildare South, Ceann Comhairle)
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That concludes consideration of that particularly vexed matter.