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Department of Justice criticised for ‘flattening goalposts’ during workplace investigation

WRC adjudicator criticises department for investigation in which former Prison Service HR director moved from witness to ‘co-accused’

Don Culliton is now one of the Irish Prison Service’s most senior officials as head of operations.

Stephen Bourke
Fri Nov 10 2023 - 14:19

The Workplace Relations Commission (WRC) has sharply criticised the Department of Justice after the Prison Service’s former HR director was changed from a witness to a “co-accused” during a work-related investigation. A potential protected disclosure was also downgraded during the investigation.

“The goalposts were not just moved – they were flattened,” wrote a WRC adjudicator in her decision on the case.

“These are not or should not be common occurrences and, in the quagmire of protected disclosures [are] potentially highly dangerous, especially as this is the very department where it can be said that it all began,” she also wrote.

Don Culliton, a former director of human resources with the Irish Prison Service (IPS), said that a report into a complaint about a prisoner transfer made in 2018 was left to “hang over” him after he himself made four protected disclosures to the department alleging that they had failed to comply with legal obligations in their investigation of the complaint.

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The WRC, however, rejected Mr Culliton’s claim that he had been acting as a whistleblower when he accused investigators of running a “flawed” process – ruling his complaint against the Department of Justice under the Protected Disclosures Act 2014 to be not well founded.

The affair started in 2018, when a Prison Service employee, identified only as Employee J, made a disclosure to the Minister for Justice in connection to the handling of a prisoner transfer incident, the WRC heard.

The tribunal noted that Employee J had complained about a suspension and a plan to transfer him.

Mr Culliton, who is now one of the Prison Service’s most senior officials as head of operations, was drawn into the complaint investigation as he was in charge of human resources at the time.

An independent screener recommended the worker’s complaint be handled under the Department’s Protected Disclosures policy and an independent company, RSM, was called in to investigate the matter.

Mr Culliton, who represented himself at a hearing in August this year, said the investigator used an “accusatory” tone with him when he was first questioned about the matter in May 2019, before altering his status to “respondent” in June that year.

He wrote a series of emails in protest, stating in September that year that his entitlement to “constitutional protections in the context of natural justice and fair procedures” had been denied to him.

Mr Culliton said that the terms of reference for the probe had changed, and that the external investigator, RSM, had denied him the right to representation in interviews and attempted to “ambush” him.

“Terms of reference were changed only when it became clear there would be no negative findings from the earlier terms of reference,” Mr Culliton told the WRC – calling the change a “direct response” to his emails.

He also claimed his reputation had been damaged when a negative finding in the investigation of the complaint was communicated to both his line manager and the original complainant.

Mr Culliton added that the department’s review of that finding, carried out in August 2022 at his request, was “flawed” and left the matter “hanging over him”.

“The department penalised me in retaliation for making the protected disclosure,” said Mr Culliton.

Walter Johnson, head of internal audit at the Department of Justice, said: “If we considered every query we got as protected disclosure, the process would cease to operate.”

He said he notified Mr Culliton’s line manager and the original complainant, Mr J, about the one negative finding of the report because the Department of Justice “wanted to get the information out there”.

Adjudicator Janet Hughes asked Mr Johnson why he had not regarded the issues raised by Mr Culliton as protected disclosures, to which Mr Johnson replied: “Hand on heart, I didn’t consider the issues he raised as wrongdoings.”

Declan Walsh, a partner in RSM Ireland, said in evidence that a person is only designated a respondent when they may have a case to answer.

“It’s important not to be premature, but when it becomes apparent, we have to designate them a respondent,” Mr Walsh said.

However, Mr Culliton said: “They penalised me for making a protected disclosure; they did that by amending the terms of reference.”

In a legal submission, State counsel Mary-Paula Guinness said: ”We do not accept that he made a protected disclosure.”

In her decision, adjudicating officer Janet Hughes agreed – finding that Mr Culliton had failed to set out “relevant information of a wrongdoing” in his emails as the Protected Disclosures Act required – and so any question of whistleblower penalisation “does not arise”.

She rejected the complaint on that basis, but said the handling of the matter by the Department of Justice had been “extraordinary”.

Few people would take a “charitable view” of being switched from witness to co-accused in an investigation, as Mr Culliton had been, Ms Hughes wrote.

She also said the change in the terms of reference in the investigation of Employee J’s complaint stood out.

“Those changes were made from using the language of the Protected Disclosures Act/policy in which the original complaint was grounded to something more akin to a grievance,” she wrote. “The goalposts were not just moved – they were flattened.”

“Spare a thought too for Employee J who had two partial findings in his favour from two different independent investigators, and both were taken away by the intervention of the governing department,” Ms Hughes wrote.

“These are not or should not be common occurrences and, in the quagmire of protected disclosures [are] potentially highly dangerous, especially as this is the very Department where it can be said that it all began.”

She said if she was in a position to make an order in the case, she would direct that Department of Justice officials in charge of employment complaints be “grounded fully in the art of fair procedures, for which they are accountable, or ought to be”.

In a separate case before the WRC, Mr Culliton is one of three current and former directors of the Prison Service waiting to receive another adjudicator’s decision on their claims of pay discrimination.

In those complaints, Mr Culliton, along with ICT and governance director Donna Creaven, and former acting director of HR Trevor Jordan, have contended they are entitled to have their six-figure salaries boosted to match the €142,892 a year earned by the director of care and rehabilitation.

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