Complainant

Respondent

Anonymised Parties

A Senior Account Manager

A Print Management and Logistics Company

Representatives

Mr F   Breathnach B.L. Instructed by Gaffney Halligan    Solicitors

Ms Elizabeth Ryan,   Mason Hayes &    Curran Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint    seeking adjudication by the Workplace Relations Commission under Section 8    of the Unfair Dismissals Act, 1977

CA-00008092-001

09/11/2016

The Complainant began working with the Respondent on or   about the 13^th June 2016 as an independent contractor and became   an employee of the Company from 4^th July 2016. The complainant was   employed as a Senior Account Manager and was paid a gross monthly wage of   €4019.20. His employment ended when he was dismissed on the 5^th   October 2016.

The complainant’s position is that he is a successful and   well regarded Sales person within the Printing Industry and was headhunted to   work for the Respondent Company. The   complainant contends that he was dismissed from his employment on the 5^th   October 2016 having made a Protected Disclosure in accordance with the   Protected Disclosures Act, 2014 on or about the 21^st July 2016.   The complainant contends that the specifics of the Protected Disclosure   relate to an instruction given to him by management in relation to ordering   items of print for a client of the Respondent.

The complainant stated that he was instructed to order the   items from a preferred supplier of the Respondent despite the high price of   the items involved. The complainant stated that the price of the items was   excessive and he was aware that they could be obtained from other suppliers   at a significantly reduced cost. He contends that when he brought this to the   attention of management he was told that the matter had been sorted out and   to return to his work.

The complainant contends that a service agreement exists   between the Respondent Company and a publically funded organisation and that   breaching this service agreement by ordering the items of print from a   supplier at an excessive price was effectively a misuse of public funds and therefore   a wrongdoing under Section 5.3(b) of the Protected Disclosures Act, 2014.

The complainant contends that once he discovered the   wrongdoing and made the Protected Disclosure to the employer, he was   penalised for so doing by his dismissal on 5^th October 2016.

The Respondent refutes the complainant’s position. The   Respondent contends that the complainant was not instructed to order the   print items from a preferred supplier. The Respondent contends that the   pricing matrix in place in the organisation sets out the maximum price that   could be paid for such a job and that the claimant did not follow procedures   in relation to ordering the items. The Respondent accepts that the claimant   had only recently joined the Company and although he claims to have been left   solely responsible for the order in question, he could have consulted with   his colleagues in relation to the procedures that he should have followed.

The Respondent contends that the Protected Disclosure   which the complainant alleges to have made on or about 21^st July   2016 was not a Protected Disclosure within the meaning of the Act and that it   was contrary to the spirit and intent of the legislation to attempt to   manufacture such a disclosure and then claim to have been penalised in the   form of dismissal as a result.

The Respondent contends that the complainant was dismissed   on 5^th October 2016 for poor performance during the probationary   period and subsequently submitted a written complaint in relation to the   alleged protected disclosure on the 10^th October 2016. The   Respondent contends that as the dismissal took place prior to the   complaint/disclosure being made it was not possible that the complainant was   penalised by dismissal for having made the complaint.

The Respondent referred to a previous decision of an   Adjudication Officer (ADJ-00003371) in support of its contention in this   regard. In that Decision the Adjudicator found that the alleged penalisation   was said to have occurred prior to the alleged protected disclosure being   made. The Adjudication Officer found that the complainant had not made a   protected disclosure in line with the provisions of the Act.

The essence of this case is whether the complainant made a   protected disclosure within the meaning of the Protected Disclosures Act of   2014. If it is accepted that a protected disclosure was made and the   complainant was penalised under the Act (by dismissal in this case) there is   no longer a requirement to have one years’ service under the Unfair Dismissals   Acts, 1977-2015.

Protected   DisclosuresAct, 2014

Section 5 of the Protected Disclosures Act 2014   defines Protected Disclosures as follows:

5. (1) For the purposes   of this Act “protected disclosure” means, subject to subsection (6) and sections   17and 18, a disclosure of relevant information (whether before or   after the date of the passing of this Act) made by a worker in the manner   specified in section   6, 7, 8, 9or 10.

(2) For the purposes of this Act information is “relevant   information” if—

(a) in the reasonable belief of the worker, it tends to show   one or more relevant wrongdoings, and

(b) it came to the attention of the worker in connection with   the worker’s employment.

(3) The following matters are relevant wrongdoings for the   purposes of this Act—

(a) that an offence has been, is being or is likely to be   committed,

(b) that a person has failed, is failing or is likely   to fail to comply with any legal obligation, other than one arising under the   worker’s contract of employment or other contract wherebythe worker undertakes to do or perform personally   any work or services,

(c) that a miscarriage of justice has occurred, is occurring   or is likely to occur,

(d) that the health or safety of any individual has been, is   being or is likely to be endangered,

(e) that the environment has been, is being or is likely to be   damaged,

(f) that an unlawful or otherwise improper use of funds or   resources of a public body, or of other public money, has occurred, is   occurring or is likely to occur,

(g) that an act or omission by or on behalf of a public body   is oppressive, discriminatory or grossly negligent or constitutes gross   mismanagement, or

(h) that information tending to show any matter falling within   any of the preceding paragraphs has been, is being or is likely to be   concealed or destroyed.

(4) For the purposes of subsection   (3) it is immaterial whether a relevant wrongdoing occurred, occurs or   would occur in the State or elsewhere and whether the law applying to it is   that of the State or that of any other country or territory.

(5) A matter is not a relevant wrongdoing if it is a matter   which it is the function of the worker or the worker’s employer to detect,   investigate or prosecute and does not consist of or involve an act or   omission on the part of the employer.

(6) A disclosure of information in respect of which a claim to   legal professional privilege could be maintained in legal proceedings is not   a protected disclosure if it is made by a person to whom the information was   disclosed in the course of obtaining legal advice.

(7) The motivation for making a disclosure is irrelevant to   whether or not it is a protected disclosure.

(8) In proceedings involving an issue as to whether a   disclosure is a protected disclosure it shall be presumed, until the contrary   is proved, that it is.

Unfair Dismissal Acts, 1977-2015

Section 6(2) of the Unfair Dismissal Acts, 1977-2015 at   relevant parts states:

Without prejudice to   the generality of subsection (1) of   this section, the dismissal of an employee shall be deemed, for the purposes   of this Act, to be an unfair dismissal if it results wholly or mainly from   one or more of the following:

(ba) the employee   having made a protected disclosure,

If the complainant’s case fails that he made a protected   disclosure on or around 21st July 2016 and was dismissed as a result, I do   not have jurisdiction to issue a decision on the substantive case of alleged unfair   dismissal as the complainant did not have the requisite service under that   Act.

In relation to the alleged print order there is a conflict   of evidence between the parties. The complainant’s evidence is that he was   instructed in an email from management to order the print items from a   preferred client of the Respondent despite the level of cost involved.

The Respondent’s evidence on this issue is that there was   no instruction issued to the complainant as claimed. The Respondent’s   evidence is that there is an approved list of suppliers in place and a price   matrix which lists the maximum price that can be paid in relation to the type   of product required. The Respondent   states that the complainant should have referred to the price matrix and to   the list of approved suppliers. He could also have consulted with his   colleagues if he was in any doubt as to what to do, given that he was only   recently in the employment of the Respondent.

Having taken the evidence of both sides into account, I   find that there were processes and procedures in place to assist the   complainant as a recently employed member of staff. There was also the option   of consulting with colleagues if necessary. In the circumstances I find that   on the balance of probabilities, the Respondent would have had no reason to   instruct the complainant as claimed especially taking into consideration the   approved list of suppliers and price matrix in place.

In relation to the Protected Disclosure, the complainant   ‘s evidence is that he made the protected disclosure on or about 21^st   July 2016 in relation to what he described as inappropriate buying practice   etc. This was two days after the Respondent held a performance meeting with   the complainant and raised issues in relation to his work performance.

The Managing Director of the Respondent gave evidence that   the alleged protected disclosure was made on the date of dismissal and was   received in writing on the 10^th October 2016. The complaint was   investigated in line with Company policies and was not upheld.

I find that the conversation the complainant submits took   place on the 21^st July 2016 was more likely as a result of what   had been notified to him at the performance meeting held on the 19^th   July rather than a legitimate disclosing of a wrongdoing or a failure on the   Respondent’s part to comply with a legal obligation as is being claimed by   the complainant.

Consequently I find that the complainant did not make a   protected disclosure within the meaning of the Act on the 21^st   July 2016 as claimed.

Having considered the written and oral submissions of the   parties and all of the evidence adduced at the hearing of this complaint, I   find that the complainant did not make a protected disclosure within the   meaning of the Act and the complaint fails. Consequently as the complainant   did not have the requisite service to bring a complaint under the Unfair   Dismissal Acts 1977 – 2015, I do not have jurisdiction under that Act.

Protected Disclosure, unfair dismissal, requisite service.