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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