Author: Terry Gorry

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Protected Disclosures

Are your protected disclosures merely grievances?

The High Court has recently dealt with two cases concerning the Protected Disclosures Act 2014. This is the legislation that was enacted in Ireland to give protection to so called whistle-blowers.

It is relatively new legislation and the boundaries of the act have not been fully explored or clarified yet. For this reason, it is useful to see the High Court passing judgment in cases which touch upon the Act.

Baranya v Rosaderra Irish meats Group Limited [2020] IEHC 56

Mr Baranya was dismissed in September 2015 and brought a case for unfair dismissal. 

He claimed that the work he was obliged to do caused him pain and suffering and he had brought his complaints to HR, the Health and Safety manager in his company, and his supervisor.

He claimed these complaints were protected disclosures as he was being put in danger of injury as a consequence of breaches of the Health and Safety legislation and regulations concerning the provision of a safe workplace.

When the case came before the Labour Court the employee argued that his complaints were protected disclosures but the company said they were merely grievances as there was no ‘relevant wrongdoing’ as understood and required by the Protected Disclosures Act 2014.

The Labour Court agreed with the employer and Baranya’s case failed. He appealed this decision to the High Court on a point of law.

High Court

The High Court agreed with the Labour Court and found that what he complained of were not protected disclosures but grievances.

Interestingly, Justice O’Regan held that if the Labour Court had said Baranya’s communications were grievances rather than protected disclosures it would have amounted to the Labour Court deciding that a grievance can never be a protected disclosure and this would have been an error in law.

What the Labour Court said was it was a grievance and not a protected disclosure and this distinction was acceptable.

Hosford v Department of Employment Affairs and Social Protection [2020] IEHC 138

Mr Hosford worked in the Department of Employment Affairs and Social Protection. He was subject to a disciplinary procedure for alleged misconduct.

He brought a claim to the WRC on the basis that he was effectively being penalised for having made a protected disclosure. The WRC found against him and the Labour Court agreed with this decision when he appealed it.

He then appealed to the High Court on a point of law.

Mr Justice Meenan determined that the disciplinary process in the workplace was not concerned with the emails containing purported protected disclosures per se. What it was concerned with was the widespread circulation of said emails and this was what led to the disciplinary procedure against Mr Hosford.

Thus, the High Court agreed with the WRC and the Labour Court’s decision that Mr Hosford was not penalised for having made protected disclosures.

I have written previously about this case: you can read the blog post here.

Comment

I meet employees frequently who tell me that they have made protected disclosures to their employers and are seeking some relief or remedy afforded by the Protected Disclosures Act 2014. 

It is rare, however, that what the employee is referring to is a real protected disclosure as defined in the Protected Disclosures Act 2014. It is more likely to be a grievance or some sort of complaint as opposed to a “relevant wrongdoing” which is the test in set out in the Act.

Section 5 of the Protected Disclosures Act 2014 defines a protected disclosure, disclosure of relevant information and what is “relevant information”.

Categories
Health and Safety

The bullying dilemma in Irish law

workplace bullying ireland

There is a massive problem for the employee who feels she is being bullied in the workplace. Yes, there are remedies. 

Yes, there are courses of action, including legal, open to any victim.

But it is still a difficult situation. Let me explain.

If you feel you are being bullied in the workplace you would be obliged to try to deal with the issue in the workplace in the first instance. The bullying procedure, if one exists in your staff handbook, will tell you the first step is to confront the bully and tell him that you believe his behaviour towards you is inappropriate.

This is a tough thing to do, let’s be honest.

If that does not work the next step may be to invoke the informal or formal bullying procedure. This will involve the victim making a formal complaint to HR or a line manager about what is going on.

But if the complaint is not upheld the situation may have worsened for the employee who believes he has been bullied. Because now the relationship with the party against whom he made the complaint has probably significantly deteriorated, and the allegation and surrounding investigation may leave a sour taste in the mouths of all concerned.

Why would the alleged victim go through this procedure at all, you might ask?

Because if the victim tries to take the matter further-for example to the Workplace Relations Commision or Court-she will be expected to have utilised and exhausted the internal procedures first. Not doing so could weaken her case later on.

Let’s assume the complaint has not been upheld in the workplace but the employee decides to submit a trade dispute to the Workplace Relations Commission. The employer’s position, if he engages in the procedure, will be that he behaved like a reasonable employer and carried out an investigation in accordance with the procedures in the workplace. 

He will say the complaint was not upheld and he fulfilled his duty of care to all employees, including the alleged bully.

But if a trade dispute has been submitted for investigation by the WRC under the Industrial Relations Act 1969 the employer is not obliged to participate. But it is even worse than that from the perspective of the victim.

Because the employer is given the option to tick a box on the letter he receives from the WRC which prevents any investigation from being carried out. And even if he agrees to an investigation the recommendation from the WRC is legally unenforceable. 

It is only a recommendation. The employer can simply ignore it.

An employee might decide to try to pursue the matter through the civil courts. She could sue the employer for breach of contract, negligence, breach of statutory duty to provide a safe place of work, and so on.

But the employee will have to prove that she was bullied, there was a failure by the employer, and that damage and loss was a consequence of the bullying. This is difficult to prove.

When it comes to loss you might consider suing by way of a personal injury claim for a psychological or psychiatric injury you claim you have suffered. If you can prove this it will be similar to an ordinary personal injury claim and you can be compensated for your general damages (pain and suffering) and special damages (out of pocket expenses/losses).

But this is a difficult case to prove because you will need to prove you have suffered a recognised psychological injury. 

Not just ordinary workplace stress. Not just difficulty in sleeping or a sick feeling in the pit of your stomach at the thought of going to work.

A proper psychological or psychiatric injury which is recognised by the psychiatric profession.

And in the meantime you are either in work, with the associated difficulties with that, or you are out of work on certified sick leave and almost certainly losing out on your usual salary payments. 

A civil action in the courts can be slow and costly and if the case goes to a hearing it is a case of “winner takes all” when it comes to the allocation of the legal costs.

Is it any wonder that many employees who find themselves in this situation eventually just leave the job and move on?

I am not saying that nothing can be done, far from it. But it is a tough situation and can be a lonely road to travel with an uncertain outcome.

Categories
Employment Claims Employment Law Procedures and Policies

Don’t make the mistake of falling in love with your grievance

Workplace grievance?

I meet a large number of employees on a daily and weekly basis. The vast majority of them have something bothering them in connection with their job or workplace. 

A small number are simply seeking clarification about an aspect of employment law or their contract of employment or something related.

But most of them have some issue that is eating them up and causing them stress and anxiety. Some issue which causes them confusion and uncertainty and maybe even damages their confidence and sense of self worth. 

This may go so far as to have the employee questioning whether to stay in the job or move on or take some other course of action such as a career change.

Occasionally, however, I encounter a small number of employees who seem to have fallen in love with their grievance. They appear to have developed a highly attuned sense of being wronged. 

These persons appear to be happier being in conflict with their employer, especially if they have actually been wronged as a consequence of the employer making some mistake in dealing with them, rather than sorting out the issue and moving on.

These employees, rather than being committed to a quick resolution of the problem that has arisen, want to prolong the situation and want to nurture their sense of being ill used. Some even want to watch the employer squirm and bend over backwards to accommodate them.

Fair enough. Human nature is human nature and we all, from time to time, take satisfaction from watching the other party abase themselves to try to make amends for some slight or wrong.

But this can be a dangerous game, one which can backfire. The long term relationship between employee and employer can be damaged beyond repair, especially if the employer has taken great steps to sort out the problem.

I only encounter this on an infrequent basis. But there appears to be a healthy number  of individuals who would rather drag their grievance around with them like a clanking chain than arrive at a solution and move on to normal resumption of the employment relationship.

This is a mistake which should be guarded against. You need to pick your battles and ensure that you do not make the mistake of winning a battle and losing the war. 

It is the long game you need to keep in the forefront of your mind, not some short term win which may carry hidden costs.

Categories
Protected Disclosures Unfair Dismissal

Employer ordered to continue pay and benefits to dismissed employee

whiltleblower-legislation

John Clarke was dismissed from his job in May 2019 but his employer was ordered by the Circuit Court to maintain his pay and benefits until the outcome of his WRC case. (That case has still not been determined as I write this in September 2020).

Mr Clarke had sought the protection of the Protected Disclosures Act 2014 from the Circuit Court as he claimed he had been dismissed for having made protected disclosures in the workplace.

He had commenced employment as a group financial controller with CGI Food Services Limited in 2017. Difficulties arose for him when he raised issues which he claims were protected disclosures and ultimately led to his dismissal. The issues were to do with financial details, payments, a false invoice, unvouched expenses, Revenue issues, to name a few.

He fell out of favour with the employer and was berated and criticised and ultimately dismissed for allegedly poor performance. His contention was that this was simply a cover for terminating him for having made protected disclosures and he was entitled to the protection against penalisation contained in the Protected Disclosures act 2014.

He went to the Circuit Court and was successful in arguing that he was dismissed for having made protected disclosure and he was entitled to an interim relief order which maintained his pay and benefits until the WRC hearing had been determined. He succeeded in obtaining such an order.

The WRC hearing commenced in September 2019 and was adjourned a number of times, including on account of the Covid 19 emergency. The Employer ultimately appealed the Circuit Court decision to the High Court.

Protected disclosures?

The first thing the High Court had to decide was whether the matters Clarke complained about were protected disclosures or merely grievances. The issues he had raised concerned financial irregularities and food safety concerning the storage of food (pizza). The financial issues he raised were concerns about vat and Revenue obligations.

The employer claimed these issues were not protected disclosures and were not “relevant wrongdoing” as set out in the Protected Disclosures Act 2014. The employer also contended that the employee had only raised the protected disclosures argument after his dismissal.

The High Court held that the issues were, in fact, protected disclosures and there was no need for the employee to use the language of “protected disclosure” or to invoke the Protected Disclosures act 2014 in the workplace in the first instance.

The Court also held that without making any final finding on the substantive case of the employee that “it is likely that there are substantial grounds for contending that the dismissal results wholly or mainly from the employee having made a protected disclosure”.

Mr Justice Richard Humphreys dismissed the employer’s appeal and affirmed the order of the Circuit Court and the employer is obliged to continue the employee’s contract of employment for the purpose of pay and benefits until the case is decided by the WRC.

Clearly, the Covid 19 pandemic may prolong even further the ultimate determination of this case which will prove to be a costly affair for the employer the longer it goes on as he will be obliged to continue Mr Clarke’s pay and benefits.

Read the full decision in John Clarke v CGI Food Services Limited and CGI Holding Limited [2020] IEHC 368

Categories
Redundancy Unfair Dismissal

Unfair redundancy? Your options and the factors to consider

redundancy claims

Have you been unfairly made redundant?

Perhaps you have a sneaking suspicion that it was not really a genuine redundancy situation and the employer simply took the opportunity presented by the Covid 19 pandemic to get rid of you.

Or maybe the redundancy was genuine but you feel you were unfairly selected, that someone else should have been chosen and it would have made much more sense.

I have met many employees who have found, or find, themselves in this type of situation. The question arises: what can you do about it?

Unfair dismissal

The main cause of action will be a case for unfair dismissal on the grounds that

  1. It is a sham redundancy, not a genuine one or
  2. You have been unfairly selected.

If you can prove that your case falls into one of these categories you may well win your case for unfair dismissal. If you do the remedies open to you, at the discretion of the adjudication officer at the Workplace Relations Commission, will be

  1. Financial compensation
  2. Reinstatement (in your old job)
  3. Reengagement (in a new position in the company)

There is a problem, however. If you have been unfairly dismissed and you prove it was not a genuine redundancy it is almost certain that whatever redundancy payment will have to be offset against your financial loss, as calculated by the provisions of the Unfair Dismissals Act 1977.

This could mean, in effect, that you would be no better off by bringing such a claim. This will depend, however, on two things:

  1. How long you were unemployed after the termination
  2. How much of a redundancy payment you received

Examples

Let’s assume you have been paid €15,000 redundancy and you succeeded getting a new job within a month of being terminated from the old one. Your financial loss in this situation will be only 1 month’s salary, therefore if you are successful with an unfair dismissal claim you will be looking at financial compensation of 1 month’s salary. Factor in legal fees for preparation for and representation at the WRC hearing and you may decide you are better off putting the whole thing behind you and moving on.

On the other hand you may have been paid only statutory redundancy, let’s say €10,000, and you have been unemployed for 9 months after the termination. In this case you will be better off if you are successful with an unfair dismissal claim and remember you could also win reinstatement or reengagement.

Other considerations which arise will be whether you believe the relationship between you and the old employer is totally ruptured and damaged, or would it be convenient for you to get your old job back, or an alternative position.

A further factor needs to be considered: did you sign a settlement/termination agreement? Because if you did, and you had the benefit of legal advice, you may have waived your rights to bring any claims against your former employer.

Conclusion

You will note that you need to give your situation serious thought and consideration and weigh up all the options, taking into account the issues raised above. You may have additional considerations and factor to consider as each case is unique.

Legislation

Redundancy Payments Act 1967

Unfair Dismissals act 1977