Complainant

Respondent

Anonymised Parties

A General Manager

A Hotel

Act

Complaint Reference No.

Date of Receipt

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

CA-00012498-001

14/07/2017

This case concerns a claim for unfair dismissal. The Complainant worked as a General Manager of the Respondent Hotel. He submitted a Protected Disclosure on 3 April 2017 and submitted that he was dismissed because of this act. The Respondent rejected the claim out of hand. I adjourned the case on December 19, 2017 as I was not satisfied I had sufficient detail or documentation to inquire into the complaint. I sought written submissions from both parties.

The hearing resumed on 16 April 2018. Both parties made written and oral submissions.

The Respondent runs a Hotel and apartment complex. The Respondent outlined that the complainant presented with circumstances during his employment which placed the Hotel at risk and served as the reason for his summary dismissal on June 19, 2017.The Complainant was to take instruction from Mr A, a company director.

The Respondent challenged the presentation of a protected disclosure by the complainant in accordance with Section 5 of the Protected Disclosure Act, 2014. The Respondent Solicitor submitted a written statement wherein, he queried the nature of the protected disclosure relied on by the complainant?

It was accepted that the complainant had raised concerns regarding Mr A’s financial understanding of the business. However, Mr A is a qualified accountant and queries regarding his competence in his role did not match the narrow criteria provided for in Section 5 of the Act. The Respondent saw the comments as defamatory instead.

The Respondent contended that the complainant had not specifically delineated the financial irregularities complained of. The Company Director was entitled to adjust in the running of the company.

The Respondent relied on a booklet of email correspondence exchanged between the parties during the 9-month period of employment as a demonstration of the General Manager/ Company Director employment relationship.

The Respondent outlined that the Hotel had not been in the hands of a National Agency and that both the complainant and Mr A were charged with running the business and signing off transactions. the Complainant was given access to the business bank accounts. Mr A established a record of a €33,000 deficit in the account in early April 2017 and he prioritised this for the complainant’s attention.

Evidence of Mr A: Company Accountant/Director

Mr A worked as an offsite Accountant and company Director. He shared the responsibility with the Complainant for running the business.

He gave reasons for the complainant’s dismissal as a breach of trust and gross misconduct. Mr A had received very negative calls from the hotel once the complainant went on his family holiday at the end of May 2017. He was alarmed and lost confidence in him as General Manager when he received a damning report from a Duty Manager during her resignation. He was surprised that the complainant did not return to the company in the face of such turmoil. He issued the complainant a notice of suspension by email. Mr A stepped back into the Managers role on June 15. The staff were on the verge of leaving or mutiny.

He met with the complainant on his return on 19 June. He explained that two key members of staff had left and has raised issues on the lack of management at the business. He told the complainant that serious issues had arisen on staff contracts, lack of liquor licence and that the Hotel was not sufficiently accredited.

Mr A expressed real concerns regarding Fire and Food safety at the premises and feared the consequences for the 40 staff and their welfare.

During cross examination, Mr A stated that he could not recall a conversation in the Hotel restaurant one week before his departure on holidays.

In conclusion, the respondent argued that the Complainant had not satisfied the criteria for the submission of a protected disclosure and it followed that the claim for unfair dismissal could not succeed. The Respondent argued that the complainant had placed the Hotel in a significant risk situation and offered a report compiled by his successor as documentary proof of this.

The Complainant worked as a General Manager at the Respondent Hotel for a 9-month period from 16 September 2016 until his employment was terminated by the Respondent on grounds of poor performance on 19 June 2017. He worked a 50-hour week and nett pay was €878.00 per week. He secured new work on 14 August ,2017 on less favourable terms and tenure. He sought the remedy of compensation. The Complainant made oral and written submissions in support of his case.

The Complainant submitted an outline of his case. He stated that he had accepted the position of General Manager at the Hotel having received assurances that the Hotel was trading well and his focus was to be directed to operational matters. During his initial months of employment, he worked hard but had concerns on a notable lack of accounting structures and” the irrational actions and methods of management “of an offsite Director, Mr A.

The Hotel also had a US based Director, whom he met at the hotel   for the first time in December , 2016   .The Complainant identified that he made a protected disclosure to this Director at that meeting .He raised concerns on the financial standing of the business and the US Director told him he trusted the Off-site Director, Mr A , but to keep him in the loop if the complainant needed anything actioned .The Complainant formed the view that he was making progress in terms of taking the financial reins for the Hotel and had high hopes for the future .

On February 1, 2017, the complainant had cause to raise an unwelcome approach of being undermined in his running of the Hotel. The US based Director supported the complainant and he had limited interference thereafter. He secured access to the Hotel accounts and this enabled him in his work.

The Complainant submitted that matters deteriorated at the Hotel following an email received from the Offsite Director which accused him of losing a “large payment “in the Hotel accounting system. The Complainant sought to enlist the support of the US Director, who assured him that he was doing a good job and was not at risk of dismissal.

On 4 April 2017, the complainant entered a lengthy conversation with the US Director regarding his concerns about Mr A’s financial practices at the Hotel. He termed this conversation as a protected disclosure over 15-minute call.

The Complaisant proceeded in preparing the business for the summer season. He discovered a discrepancy in a Bill Payment involving the Offsite Director. He raised it as an issue but got nowhere, which prompted him to raise it with the US Director. He was informed to let the matter rest until end of season when the US Director would then decide an action plan. The Complainant formed the impression that the US Director had over relied on Mr A in relation to the business.

The Complainant met with the Offsite Director just prior to going on a family holiday at the end of May,2017. During this meeting, he was upbeat and imparted positive feedback on the business performance.

During his annual leave, the Complainant received email contact from a Bar Manager indicating that a Duty Manager had resigned and he also was resigning. He also learned that the Offsite Director was now firmly on site and asking questions of the staff. He sought to make contact, but was unsuccessful and discovered that his company email had been disabled. He eventually contacted Mr A who sought to meet with him on his return on June 19, 2017. He was notified of his suspension.

On his return from leave, the complainant was requested to meet Mr A in a nearby Hotel. He was taken aback that this meeting was not private and was in full view of other patrons. He was dismissed at this meeting and was threatened by Mr A. He felt intimidated.

He received a notification of dismissal on July 10 ,2017. This document contained allegations and actions not previously known to him. He made every effort to structure the engagement towards the procedural framework of an investigation and sought to defend himself, but he believed that he was ignored. The meeting concluded at 20.27 hrs. He had not requested representation.

The Complainant contended that his probing of the operation of the business caused him to be targeted by Mr A who served as a “front man” for the company. He also contended that his disclosure to the US Director made him a threat for Mr A.

The Complainant received a letter dated July 10, 2017 which outline the reasons for his dismissal.

1 Fire Consultant Inspection

2 Inspection by a separate individual who directed food safety breaches.

The Respondent then went out to offer pay in lieu of notice and cessor pay if the payment was accepted as a full and final settlement by the complainant. This was rejected by the complainant.

The Complainant outlined that he had faced considerable upheaval in relocating his young family for the purposes of work and had endured unfair treatment and lasting reputational damage.

During cross examination, the complainant confirmed that he had no recollection of signing a contract by email on 16 September 2016. He was aware that amendments were needed in staff contracts and they stood at 60% completed. He denied that 23 employees were without contracts.

The Complainant re-affirmed that he had not managed to illicit a response to his emails sent to the Hotel between 1-7 June.

The Complainant confirmed that pay was an issue for the two leaders. However, he had a clear understanding that he was making progress at the Hotel and was well on the way to returning the business to commercial viability.

I have considered the submissions raised by both parties in this case. The Complainant has contended that his position of General manager was terminated arising from protected disclosures made over the period of December 2016 and April 3 and 4 ,2017 to the US based Company Director. This person was not in attendance on either day of the hearing. I would have liked to have met this person.

The Respondent sought to address the commentary on Mr As accounting practices as defamatory. I explained to the parties that the hearing of the case was a private employment matter.The Complainant also referred to outstanding statutory claims for minimum notice and annual leave. While there appeared to be an admission by the Respondent of some liability here , these claims were not before me and are best addressed between the parties .

In a standard claim for Unfair Dismissal, a complainant is required to have accumulated 12 months service prior to issuing his complaint. As this case has arisen from a submission on a protected disclosure, this 12 months service is set aside. However, I must be satisfied that a protected disclosure is in being in the case. I will address this as a Preliminary Issue:

The Complainant has drawn my attention to a December 2016 set of discussions with the owner of the business. He also drew my attention to the emails/texts of April 3 and 4, 2017, where in addition to a telephone call to the US based Director, these emails formed the basis of the protected disclosure in the case. The Respondent also furnished copies of these emails. I am required to consider these documents and the evidence adduced very carefully.

The Protected Disclosure Act, 2014 enacted in July 2014 is accompanied by a very useful code of Practice on Protected Disclosures in SI 464/2015.This code underpins the principle that:

“The disclosure of information relating to wrong doing in the workplace is best dealt with in the first instance at workplace level. However, there may be circumstances where this may not be appropriate; It is in the interests of employers, workers and their representatives to have in place clear and agreed procedures providing for “whistleblowing “in the workplace.”

To enjoy the protections of the Act, disclosures must be made in accordance with the provisions set out in the Act. Motivation is irrelevant, what is required is that a worker has a reasonable belief as to wrongdoing and that this wrongdoing has come to the workers attention about his employment (Section 12 of the Code of Practice).

I have found considerable conflict in both party’s recollection of the events surrounding this case. I have, however established on the evidence adduced that the first few months of the complainant’s employment were rocky. He did not have the benefit of a supportive probation period or a contract of employment and he was deeply suspicious that the business he had relocated his young family to was resting on very weak foundations with a sporadic ad-hoc financial system. I could identify that he made valiant efforts to assume control of this and spearhead the business to success. This was acknowledged in a text attributed to the owner dated 7 February 2017.

On the other hand, it was clear that the Respondent business was a complicated entity. The main funder appeared to be the US Director with vested management authority in Mr. A. It was clear to me from an early stage that the lack of role demarcation in both Mr. As role and that of the complainant’s role was a prime factor in the unease between the parties, which remained visible during both hearing dates and did not dissipate following the occasional site visits of either Irish based or US based Director. A clear struggle for power and control of the operation of the business was a dominant factor in the case.

Protected disclosures

5. (1) For the purposes of this Act “protected disclosure” means, subject to subsections (6) and (7A) 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 whereby the 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) [ Subject to subsection (7A) , the motivation   for making a disclosure is irrelevant to whether or not it is a protected disclosure.

(7A) Where a worker, referred to in subsection (1) , makes a disclosure of relevant information in the manner specified by that subsection, and in respect of that disclosure of relevant information it is alleged that the disclosure concerned the unlawful acquisition, use or disclosure of a trade secret (within the meaning of the European Union (Protection of Trade Secrets) Regulations 2018 ( S.I. No. 188 of 2018)), such disclosure is a protected disclosure provided that the worker has acted for the purposes of protecting the general public interest.  

(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.

I followed the email thread of April 3 ,2017

1 At 11.43 am Mr A signalled a monthly loss of €33,000 and sought an explanation from the complainant.

2 At 17.54 hrs The Complainant text the US Director to indicate that he was following up on the morning email, which had been copied to him.

3 At 11.05:46 hrs (pm) The Complainant made an extensive reply to Mr A and the Directors. He outlined a vacuum in standard accounting tools, details of March 2017 expenditure on an excel sheet, and a direction to set electricity payments on direct debit. He stated that he was open to questions.

4 On April 4, the email thread went on to focus on wages costs, and ongoing loss at the business in Mr as response. The Complainant submitted that he had a lengthy conversation with the US Director on payments made by Mr A to contractors.

5 The Complainant emailed again hoping that the company was moving forward towards improved trading. He set out a desire that his aims for the company be viewed in line with the directorship.

I cannot establish from the evidence adduced, the email thread or the texts that the information disclosed tended to demonstrate a reasonable belief by the complainant that one or more relevant wrong doings had occurred.

There is no provision for a breach of employment contract in the scope of the Act. It is regrettable that the Respondent was not able to submit any Grievance, Disciplinary or Whistleblowing procedures. Had dedicated policies been in place the complainant may have been better guided on the difficulties he faced.

The Complainant did not retain any records of his phone conversation with the US Director on 4 April ,2017. I accept that a conversation took place but on balance, I found that the main concern at that time was in his defending a suggested loss of €33,000 at the Hotel and stabilizing the Accounting system. This was an internal work issue firmly within the remit of a General Manager/ Accountant /Director relationship.

Section 5(5) of the Act provides that workers whose function it is to detect, investigate or prosecute wrongdoing and then make a disclosure will not be protected under the 2014 Act unless the wrong doing emerges from an Employer act or omission. In Donegal County Council V Carr PDD 161/2016, a retained fire fighter (Station Officer) made 6 protected disclosures in relation to alleged behaviour of his colleagues. These were found not to constitute valid protected disclosures as the function to detect, investigate and prosecute was judged to lie within the gift of a station officer. Donal O Riordan BL took issue with the limitation placed on management levels in Irish Employment Law Journal 2017 14(1) (10-17). Instead, he argued that a manager may only benefit from the protections of the Act where their employer fails to act upon the wrong doing identified.

In the instant case, I can accept that the complainant was faced with sporadic periods of storm and stress during his early months of employment. He was faced with an arduous task and there was little support or procedural or contractual guidance. However, I have examined each of the alleged protected disclosures sent by the complainant to his former employer. The Complainant confirmed that he had made many reports on the business to the US Director.

Having heard the evidence of both parties, I have concluded that the disclosures made by the complainant did not constitute a protected disclosure within the meaning of the Act. The complainant did not hold a reasonable belief that the information disclosed tended to show one or more of the relevant wrongdoings prescribed in the Act. Philpott v Marymount University Hospice /Hospital [2015] IECC1 applied.

For the Complainant’s case that he was unfairly dismissed for having made a protected disclosure to succeed, I must be satisfied that the Complainant’s employment was terminated by the Respondent in reaction to or in retaliation for his having made the disclosure.

I have carefully considered all the evidence in this regard. I have established a level of poor trust between the parties during the course of the working relationship .However, I found that the issues at the heart of the reports and discussions initiated by the complainant did not amount to protected disclosures .They did not satisfy the test set down in Section 5 of the Act .In  SouthsideTraveller Action Group and Imelda O Keffee UDD 1828 /2018 , the Labour Court determined that a protected disclosure had been filed but could not be viewed as a contributor to Dismissal ,Instead Dismissal was linked to an alternative reason .Ms. O Keffee appeared to have served the 12 month service requirement in order to have her case decided .

I must resolve this Preliminary issue in favour of the Respondent. I cannot establish the presence of a Protected Disclosure. I have found the claim to be not well founded.

Decision:

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

I have not established the presence of a protected disclosure in the case, Section 6(2) (ba). I am not able to waiver the 12 months service requirement in the case. The claim for unfair dismissal is not well founded and cannot succeed.

Dismissal on ground of Protected Disclosure.