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Protected Disclosures Unfair Dismissal

Employer ordered to continue pay and benefits to dismissed employee

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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
Protected Disclosures

Whistleblower’s Appeal of Labour Court to the High Court on 10 Points of Law Dismissed

A Higher Education Officer in the Department of Employment Affairs and Social Protection has had his appeal to the High Court on ten points of law against the Labour Court dismissed.

The background to the case is that the employee was the subject of a disciplinary procedure due to alleged misconduct in the workplace. The alleged misconduct was categorised under three headings:

  1. Disruptive behaviour
  2. Refusing to comply with reasonable management instructions
  3. Failure to comply with Civil Service policies and procedures

The outcome of the disciplinary proceedings was the employee was to be given a final written warning. The employee appealed this decision on two occasions, neither of which were successful.

The employee made a number of protected disclosures pursuant to the Protected Disclosures Act 2014 and then submitted a claim to the Workplace Relations Commission on the basis that the disciplinary procedure through which he had been taken was as a consequence of his protected disclosures. The WRC adjudicator did not find in his favour.

The employee appealed this decision to the Labour Court who found that his claim was not well founded. He then appealed this decision to the High Court setting out ten grounds on which he claimed the Labour Court had erred in law.

High Court decision

The High Court firstly looked at its jurisdiction to deal with appeals from the Labour Court and noted that it could only concern itself with issues of law and could not look at the substantive elements of the claim itself. It is not a full appeal, and the High Court referred to the supreme Court’s consideration of the issue in Nano Nagle School v Marie Daly [2019] IESC 63.

The Supreme Court held that the issues that could be considered were:

“These included (i) findings of primary fact where there is no evidence to support them; (ii) findings of primary fact which no reasonable decision-making body could make; (iii) inferences or conclusions which are unsustainable reason of any one or more of the matters listed above; or which could not follow or be deducible from the primary findings as made; or which were based on an incorrect interpretation of documents. (See para. 54). If not included in that category, I would add a determination which is ultra vires, where there is a failure of statutory duty. Undoubtedly, deference is due to an administrative tribunal acting within the scope of its duty. But, when there is a substantial failure of compliance with that statutory duty, a court must intervene. The determination not comply with the statutory duty laid down in the Act. “

The High Court noted that it cannot substitute its judgment for that of the Labour Court, even if it wanted to. The High Court can look at “the procedures and processes followed by the Labour Court in making its findings of fact, and to consider whether its decision is sustainable at law”.

The determination of the Labour Court

The High Court found that “the Labour Court acted in accordance with the requirements for fair procedures. The appellant was present, heard directly the evidence against him and was afforded an opportunity to challenge it”.

The High Court, in dismissing the appeal, determined that the findings of fact made by the Labour Court were supported by evidence and the provisions of the Protected Disclosures Act 2014 were correctly interpreted and applied.


Read the full decision here in Pascal Hosford v Department of Employment and Social Protection.

Categories
Protected Disclosures

Protected Disclosures Do Not Make Employees Untouchable

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Employees need to be clear that any claim that they wish to advance under the Protected Disclosures Act 2014 will fail unless they can show that the penalisation or dismissal about which they complain occurred as a direct consequence of having made a protected disclosure.

The employee is not protected by this Protected Disclosures Act 2014 simply because he claims to have made a protected disclosure.

Because it may well be the case that an employee is disciplined or dismissed for reasons wholly unconnected to any alleged protected disclosure-for example, conduct, competence, performance, redundancy.

Both the Labour Court and Workplace Relations Commission confirmed this was the case in a case involving a civil servant in Department of Employment Affairs and Social Protection v Hosford.

Hosford claimed that he had been penalised by the Department for having made a protected disclosure in the workplace. The Department denied this was the case and said he had been disciplined for alleged disruptive behaviour, failing to follow reasonable directions, and failing to follow the practices and procedures in the workplace.

Hosford’s claim at the WRC failed and he appealed this decision to the Labour Court. The Labour Court held that making a protected disclosure “does not immunise” and employee from the normal disciplinary procedure in the workplace.

The Labour Court found

The fact of a person having made a protected disclosure within the meaning of the Act of 2014 does not immunise the Appellant from a disciplinary response to behaviours which would ordinarily cause an employer to consider the initiation of such procedures provided such behaviours are not in themselves protected disclosures or arising in the course of making protected disclosures. In this case the Court finds that the behaviours which grounded the initiation of disciplinary procedures were not protected disclosures or arising from the making of such disclosures.

Read the full decision here.

Conclusion

Making a protected disclosure is sometimes used by an employee in reliance on the significant protections afforded to employees by the Protected Disclosures Act 2014. But the employee cannot use it as a sword or a shield if there is some other reason(s) as to why the employee is facing an investigation or a disciplinary procedure.

You need to be clear, too, about the significant difference between what constitutes a protected disclosure-relevant wrongdoing-and a grievance about shoddy, but not unlawful, work practices.

Categories
Protected Disclosures

The Crucial ‘But For’ Test in Penalisation for Making a Protected Disclosure Cases

When you claim that you have been penalised for having made a protected disclosure under the Protected Disclosures Act 2014 you need to be aware of a test you will need to pass if you are to succeed with your case.

Firstly, section 5 Protected Disclosures act 2014 sets out what is a protected disclosure for the purposes of the act.

Section 3 Protected Disclosures Act 2014 defines penalisation for the purposes of the act as follows:

“penalisation” means any act or omission that affects a worker to the worker’s detriment, and in particular includes—

(a) suspension, lay-off or dismissal,

(b) demotion or loss of opportunity for promotion,

(c) transfer of duties, change of location of place of work, reduction in wages or change in working hours,

(d) the imposition or administering of any discipline, reprimand or other penalty (including a financial penalty),

(e) unfair treatment,

(f) coercion, intimidation or harassment,

(g) discrimination, disadvantage or unfair treatment,

(h) injury, damage or loss, and

(i) threat of reprisal;

Section 12 Protected Disclosures Act 2014 provides the protection against penalisation for having made a protected disclosure as follows:

12. (1) An employer shall not penalise or threaten penalisation against an employee, or cause or permit any other person to penalise or threaten penalisation against an employee, for having made a protected disclosure.

The key thing to take from this to win your case is that you must prove you suffered the penalisation for having made the protected disclosure. ‘For’ is the key word as the Labour Court has held that if there are other reasons why you may have been penalised your claim under the protected disclosure act will fail.

The “but for” test

The Labour Court, in PDD 162 AIDAN & HENRIETTA MC GRATH PARTNERSHIP and ANNA MONAGHAN stated as follows:

The Court must now consider whether or not she was penalised for having made such a protected disclosure.

The Act is a new piece of legislation with limited case law, however, the provisions regarding penalisation are broadly similar to those provided in the Safety Health and Welfare Act, 2005. As this Court pointed out in O’Neill v Toni and Guy Blackrock Limited[2010] E.L.R. 21, it is clear from the language of Section 27 of the 2005 Act that in order to make out a complaint of penalisation it is necessary for a complainant to establish that the detriment of which he or she complains was imposed “for” having committed one of the acts protected by Section 27(3) of the 2005 Act. Thus the detriment giving rise to the complaint must have been incurred because of, or in retaliation for, the Complainant having committed a protected act. This suggests that where there is more than one causal factor in the chain of events leading to the detriment complained of the commission of a protected act must be an operative cause in the sense that “but for” the Complainant having committed the protected act he or she would not have suffered the detriment. This involves a consideration of the motive or reasons which influenced the decision maker in imposing the impugned detriment.

The Court is of the view that the Toni and Guy case involved penalisation under the 2005 Act, nevertheless, the general principle enunciated in that case remains valid in the case under consideration.

You will note that the Labour Court requires you to prove that the penalisation complained of would not have occurred but for the protected disclosure and if there was other possible causes of the penalisation a look at the motives which influenced the decision maker to penalise will have to be looked at.

This is known as the “but for” test.

Conclusion

It is not enough to show you have made a protected disclosure and have been penalised; you must prove you have been penalised for making the protected disclosure.

If there is other possible explanations for the penalisation the motives of the employer will have to be examined but you will have to show that ‘but for’ the protected disclosure you would not have been penalised.

Categories
Protected Disclosures Whistleblowing

Employees Getting Interim Relief Orders under the Protected Disclosures Act, 2014

 

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Let’s be honest.

The Protected Disclosures Act 2014 struck fear into the hearts of employers when it first came into law.

Five years’ salary as an award for an unfair dismissal?

Interim relief orders in the Circuit Court preventing dismissals?

Eye watering stuff. How has it panned out?

Let’s take a look at the interim relief order, effectively an injunction.

The first interim relief order under the Protected Disclosures Act 2014 was granted in September, 2016. The case involved two Lifeline Ambulance Service workers who were made redundant.

They were granted an order in the Circuit Court directing the continued payment of their salary pending the outcome of a claim for unfair dismissal which they had brought to the WRC (Workplace Relations Commission). They had brought claims to the WRC, on the basis that they were unfairly dismissed for making a protected disclosure to the Revenue Commissioners.

The employees contended that they were dismissed for making a protected disclosure to the Revenue Commissioners in January, 2016, and their dismissal was connected to this.

The Circuit Court did not find that they were dismissed for whistleblowing or making a protected disclosure, but found that the employees had substantial grounds for claiming this.

This was enough-this means that the employees had met the probative burden-the burden of proof-placed on them in the Protected Disclosures Act, 2014.

Because all they had to show was “substantial grounds” for claiming a connection between the dismissal and the protected disclosure.

The Protected Disclosures act, 2014 is a strong piece of legislation with a wide range of remedies for employees, one of which is this interim relief order preventing a dismissal pending a claim for unfair dismissal for having made a protected disclosure. (Read more about protected disclosures and whistleblowing in this article).

This application for interim relief, essentially an injunction, must be made within 21 days of the date of dismissal, and the argument must be that the dismissal was carried out “wholly or mainly for having made a protected disclosure”.

If this Court finds that there are “substantial grounds for contending that the dismissal results wholly or mainly” from the making of a protected disclosure the Court can order the reinstatement or reengagement of the worker with full salary.

The Court in this case ordered the employees’ salaries to be paid until the hearing of their case at the WRC.

An employee can be awarded up to 5 years’ salary if he is successful in a WRC claim for unfair dismissal by virtue of a protected disclosure.

If you are an employer this interim relief/injunction prior to a WRC hearing, and then a potential 5 years’ salary award against you is clearly eye watering stuff.

Another Interim Relief Order Followed

In Catherine Kelly v Alienvault Ireland Limited and Alien Vault inc Ms Kelly was also granted interim relief under the Protected Disclosures Act, 2014.

Ms Kelly, an office manager, made some complaints to her employer about health and safety issues in the office workplace. The employer dismissed her and claimed that the decision to dismiss her was made some days before her complaints.

Cork Circuit Court, however, found that she had substantial grounds for claiming that her dismissal was linked to her protected disclosure and granted her an interim relief order preventing the dismissal and keeping her on full pay until her case was heard in full by the WRC.

An Unsuccessful Application

In Dan Philpott v Marymount University Hospital and Hospice Mr. Philpott was seeking an injunction preventing his dismissal under the Protected Disclosures Act, 2014.

He had commenced employment in the hospital in May 2014 on a 5 year fixed term contract.

Mr. Philpott was told, however, that his contract was going to be terminated in December, 2014 due to interpersonal difficulties between him and other staff.

Mr. Philpott sought an order in the Circuit Court preventing his dismissal on the grounds that he had made protected disclosures. The Circuit Court, however, recognised that Mr. Philpott would not have the necessary 12 months’ service for an unfair dismissal claim under the Unfair Dismissals act, 1977-2007, and found also that he had failed to meet the threshold of proof-substantial grounds-in contending this dismissal was connected to a protected disclosure.

In fact, the Court held that his disclosures did not constitute protected disclosures as defined by the Act.

It is worth noting that in all these cases the employee is not obliged to mark or label his disclosure as a protected disclosure for the Protected Disclosures Act, 2014 to apply.

The employee’s motive is also irrelevant when it comes to determine whether it is a protected disclosure or not.

Takeaway

This act has serious potential consequences for employers, particularly if an employee is dismissed, for whatever reason, after (and not necessarily immediately after) making a protected disclosure.

For employees, it is an extremely useful weapon for the employee can now obtain in the Circuit Court what is essentially an injunction preventing his dismissal pending an unfair dismissal claim.