Complainant

Respondent

Anonymised Parties

A Former Financial Controller

A Co-operative Society

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Schedule 2 of the Protected Disclosures Act, 2014

CA-00013770-001

05/09/2017

The Complainant commenced his employment with the Respondent on 1st June 1972.His employment was terminated on 31st July 2010. The Complainant held the position of the Group Financial Controller at the time of his departure. Previously, he had held the role Chief Accountant of a named Division between 1990 and 2003.

The Complainant made a referral to the Workplace Relations Commission on 5th September 2017 under the Schedule 2 of the Protected Disclosures Act, 2014 (‘the Act’) alleging that he was penalised or threatened with penalisation by his former employer for having made a protected disclosure under the Act. The Respondent rejects the claim.

The Complainant submits that he was employed by the Respondent from June 1972 until July 2010. He was Chief Accountant of a named Division from 1990 to 2003. The Complainant submits that in 2011 and 2012 he made a disclosure to the Chief Executive Officer and the Chairman on the corporate governance issues including his concerns that exports refunds may have been claimed at an inaccurate rate on whole milk powder containing lactose. The Complainant asserts that this concluded with a very threatening letter from Arthur Cox Solicitors in June 2014 including threats to the Complainant’s family. The Complainant submits that the disclosure he made in 2011/2012 became protected disclosures on 15th July 2014, protected by the Protected Disclosures Act, 2014. The Complainant submits that he made a further disclosure on 17th October 2016 to the Board of Directors that he is concerned that whole milk powder containing added lactose may have been used to claim export refunds at an inaccurate rate.

The Complainant argues that the Board of Directors through their representative, Arthur Cox in the letters from Arthur Cox of 25th November 2016, 10th March 2017, 10th April 2017 and 23rd May 2017 have penalised him for making the protected disclosure including but not limited to intimidation and threat of reprisal including in particular threatening the Complainant’s family: “With regard to your various ‘options’ it is a matter for you to take whatever action is required of you by law, if in fact it is the case that reporting or other action is justified and required by law. However, we should again make it clear to you that you will have to take the consequences if it is found that you have acted unlawfully or without lawful justification. Please do not interpret this as any sort of threat, we are merely pointing out that there are potentially serious consequences for unwarranted action if taken for improper purposes. Although we are not advising you in any professional capacity we think it would be certainly advisable for you to fully instruct and take advice from your solicitor before you take any further action. We make this point to you at the specific request of the sub-committee of the Board of [the Respondent] whose members have instructed us to do so having regards to your long years of service to [the Respondent]. In this regard the Sub-Committee is conscious of the fact that you left [the Respondent] under the terms of a voluntary severance agreement which allowed you to avail of a valuable and generous severance package. Accordingly, the members of the Sub-Committee would not wish to see you or your family having to suffer the consequences of any ill-judged or unlawful action that might be taken by you…if it transpires that there is no lawful basis for a report or that your motivation for making a report was malicious, vexatious or made for some improper purpose you will of course leave yourself open to potentially serious consequences of the kind previously mentioned”. The Complainant submits that the above intimidation, coercion and thread of reprisal by the Board of Directors was included in the letter from their solicitors of 25th November 2016.

The Board again on 10th March 2017 contravened the Act when in their solicitors’ letter of 10th March 2017, they repeated the intimidation and threats when they stated: “For the avoidance of doubt, we wish to reiterate that our client’s position remains as set out in our letter of 25th November 2016.” The Complainant submits that this was after he stated in his letter of 13th January 2017 that he found their letter on 25th November 2016 intimidating and threatening and after he stated in his letter of 6th March 2017 that he would be making a complaint to the WRC seeking adjudication under Schedule 2 of the Act. The Complainant alleges that the Board of Directors on 10th April 2017 again contravened the Act when in their solicitors’ letter of 10th April 2017, they stated “We stand over the contents of our letter dated 10th March in their entirety”. The Complainant submits that intimidation, coercion and threat of reprisalby the Board of Directors of the Respondent contained in their solicitors’ letters of 25th November 2016, 10th March 2017 and 10th April 2017 and in particular the continuing threat to his family included in those letters is preventing him from making a disclosure to Ornua Ltd., the Minister for Agriculture and Marine, and the EU under Section 6(1)(b)(ii) of the Act and to the Comptroller and Auditor General under Section 7. The Complainant submits further that having made the threat of reprisal against him and his family the Board in the letter of their solicitors of 10th March 2017 did not reply to his request contained in his letter of 10th January 2017 to state that they will not take any reprisal against him for making the disclosures to the above. The Board in their solicitors’ reply of 23rd May 2017 again failed to reply to the request in his letter of 8th May 2017 to state by 30th June 2017 that they will not take any reprisal against any member of the Complainant’s family for making the disclosure and that they will not take any action directly or indirectly affecting the Complainant or any member of his family as a result of the Complainant making the disclosure. Having made the threat of reprisal and not replying when requested to state that they will not take any reprisal against the Complainant and his family is further intimidation which is contrary to the Act. The Complainant submits that he is entitled under the Act to make the above disclosures without any intimidation, coercion or threat of reprisal from the Board of Directors of the Respondent. The Complainant requested this Adjudication Officer to require the Board of Directors to provide him in writing that they will not take any action or reprisal against him or any member of his family for making a disclosure to the Board of Directors of Ornua Ltd., the Minister for Agriculture, Food and Marine, the Director General of the European Anti-Fraud Office, European Commission and the Comptroller and Auditor General and that the disclosures to these four are disclosers protected by the Act. The Complainant submits that the letters of 25th November 2016, 10th March 2017, 10th April 2017 and 23rd May 2017 contain further penalisation which is also contrary to the Act.

Misrepresentation by the Board of Directors which caused a delay in submitting the complaint to the WRC

(i)                  The Board of Directors of the Respondent state in their solicitors’ letter of 10th March 2017 “Your employment with [the Respondent] terminated on 31st July 2010. It is not therefore possible for you to bring a claim against our client under Schedule 2 of the 2014 Act. [The Respondent] does not therefore intend to provide you with any information requested in the last paragraph of your letter given that any claim under the 2014 Act would be entirely misconceived”. The Complainant submits that the above is misrepresentation by the Board which caused a delay in submitting the claim.

(ii)                The Complainant submits that he replied on 31st March 2017 stating: “The following is the definition of an employee as defined by the 2014 Protective Disclosure Act (sic).” Employee means an individual who has entered into or works under (or, where the employment has ceased worked under) a contract of employment” The definition of an employee includes where the employment has ceased.” The Complainant submits that the solicitor replied on 10th April 2017 agreeing with the above definition and stating that the Act does not apply to any acts of penalisation prior to 15th July 2014 and therefore the Complainant cannot make a claim under Schedule 2 of the Act. The Complainant submits that he was referring to penalisation within the previous six months by the Board included in the solicitors’ letters of 25th November 2016 and 10th March 2017. The Complainant informed Arthur Cox and the Board accordingly in his letter of 8th May 2017. The Complainant submits that the above is further misrepresentation by the Board which caused further delay in submitting his claim.

(iii)               Arthur Cox in their letter of 23rd May 2017 state: “The fact remains that it is not possible for you to pursue a claim for penalisation under the Protected Disclosures Act 2014 in circumstance where you ceased to be an employee before the entry into force of the Act on 15th July 2014 (in your case almost four years before that date). Any claim against our client for penalisation would therefore be entirely misconceived.” The Complainant submits that the above is contrary to the definition of employee in 2014 Act and is contradictory to their letter of 10th April 2017 agreeing with the definition. The Complainant argues that the above is also further misrepresentation in that it is giving the impression that penalisation by the Board in the six months commencing 25th November 2016 is not penalisation under the Act as the Complainant’s employment ceased in advance of the commencement of the Act. The misrepresentation above in addition to being misrepresentation by the Board which caused a delay in submitting the complaint to the WRC is also penalisation (intimidation) which is contrary to the Act.

The Complainant requests the ARC Adjudicator to:

(i)                  Under Schedule 2 Section 3(b) of the Act to require the Board of Directors to provide to him in writing that they will not take any action or reprisal against the Complainant or any member of his family for making the disclosure in Schedule I to the Board of Directors of Ornua Co-operative Ltd., the Minister for Agriculture, Food and Marine, The Director General of the European Anti-Fraud Office and to the Comptroller and Auditor general and that the disclosures to these four are disclosures protected by the Act.

(ii)                Under Schedule 2 Section 3(c) of the Act require the Board of Directors to pay the Complainant compensation of such amount as is just and equitable

The Respondent rejects the claims. The Respondent submits that the Act came into effect on 15th July 2014 (the “Effective date”). Whereas the Act applies to disclosures made before the Effective Date, it only applies to persons who were in employment on or after the Effective Date i.e. it does not retrospectively give rights to persons who had ceased employment prior to the Effective Date. The Complainant’s employment with the Respondent ceased in July 2010, almost four years prior to the Effective Date. It is not therefore open to the Complainant to bring a claim for penalisation pursuant to Schedule 2 of the Act.

Without prejudice to the foregoing, penalisation under the Act 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.”

The Complainant has not been penalised in any way by the Respondent, within the meaning of that term in the Act or otherwise.

Furthermore, the Respondent submits that in his complaint form, the Complainant seeks as a remedy written confirmation that the Board of Directors of the Respondent will not take any action or reprisal against him or his family if he makes a disclosure to a number of third parties in the future. However, a claim for penalisation under Schedule 2 of the Act only applies to disclosures that have been made and not to disclosures which may be made in the future. In this regard, Section 12 of the Act states as follow: “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”(emphasis added).

The Respondent submits that the Complainant in his correspondence noted that “For the purpose of clarification and avoidance of doubt I am making no allegation of wrong doing by any person or body corporate.” The Respondent argues that Section 5 of the Act requires that the Complainant has a reasonable belief that the information disclosed tends to show one or more relevant wrongdoings. The Respondent submits that this was not the case. The Respondent submits that the Complainant’s employment was terminated by the Respondent on 31st July 2010. This followed the negotiation of a severance package at a mediation hearing on 12th July 2010 as a consequence of which both parties entered into a settlement agreement pursuant to which the Complainant accepted a termination payment in full and final settlement of any claims that he may have against the Respondent. It is not therefore open to the Complainant to bring this claim, or any other claim, against the Respondent in relation to this formed employment and its termination.

The Respondent further submits that, strictly without prejudice to all the foregoing, it is surprising that the Complainant never raised these concerns with the Board or the Audit Committee during the course of his employment especially bearing in mind that he was Head of Internal Audit from mid-2003 to early 2006. Furthermore, Section 5(5) of the Act states that a matter is not a relevant wrongdoing if it is matter which it is the function of the worker to detect, investigate or prosecute and does not consist of or involve an act or omission on the part of the employer.

The Respondent submits that it is clear from the foregoing that the Complainant’s claim under the Act is entirely misconceived.

For completeness, in relation to the substantive allegations made by the Complainant in his complain form the Respondent submits: (a) Regarding the tax allegations, the Revenue Commissioners confirmed in writing in May 2012 that it did not intend to further investigate the issues raised; (b) Other allegations made by the Complainant were investigated by Deloitte who presented a report to sub-committee of the Board on 16th November 2012, which concluded that the Respondent has no case to answer. The Report also noted that the Complainant was using other allegations to leverage his personal position and that this was acknowledged to Mr. A of Deloitte on several, separate occasions; (c) During the period from 1990 to 2010, the Department of Agriculture protocols included ongoing regulatory compliance monitoring, in the areas of milk testing, dairy product manufacturing (including whole milk powder) and ruminant feed manufacturing on a national basis, including the Respondent. In June 2012 the Respondent contacted an inspector in the Department of Agriculture as it then was to notify him of the Complainant’s allegations. The Respondent invited the Department to conduct any further audits it wished. No further audits have been carried out by the Department.

For the reasons submitted above the Respondent argues that the Complainant’s claims of penalisation under the 2014 Act is entirely misconceived and must fail as:

(a)    The Complainant does not have locus standi to bring this claim, as his employment terminated in July 2010 almost four years before the Act came into effect;

(b)    The claim is misconceived, as it relates to a disclosure that the Complainant intends to make rather that one already made;

(c)     The complainant has not been subject to penalisation by the Respondent within the meaning of the Act or at all;

(d)    In July 2010 the Complainant entered into a legally binding settlement agreement with the Respondent to which he was legally represented in which the Complainant agreed to accept a severance package in full and final claims howsoever arising in connection with his former employment and its termination; and

(e)    The Respondent refutes in their entirety all of the allegations made by the Complainant in his complain form.

The Complainant referred in his submission to the alleged protected disclosures made in 2011, 2012 and 2016. At the hearing the Complainant submitted that he was subjected to acts of penalisation arising from a protected disclosure he made on 17th October 2016.

There are a number of preliminary matters raised by the Respondent. Firstly, it was in dispute whether or not the Complainant made a protected disclosure within the ambit of the Protected Disclosures Act.

Section 5 of the 2014 Act contains an exhaustive definition of ‘protected disclosure’:

“5. (1) For the purposes of this Act “protected disclosure” means, subject to subsection (6) and sections 17 and 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, 9 or 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.”

The Complainant argues that he made protected disclosure on 17th October 2016. The Respondent argues that the letter of 17th October 2016 cannot constitute a protected disclosure as the Complainant did not have a reasonable belief that the information disclosed tends to show a relevant wrongdoing.

The Complainant in his letter to the Board of Directors of the Respondent of 17th October 2016 states that he was the Chief Accountant of the named Division of the Respondent from 1990 until 2003 and he was concerned that a produce manufactured by the Respondent in that period “…may have been used to claim export refunds at an inaccurate rate of export refund. I am making this statement pursuant to the Protected Disclosures Act 2014. For the purpose of clarification and avoidance of doubt I am making no allegation of wrong doing by any person or body corporate.”

I note that in his subsequent letter of 8th May 2017 the Complainant states: “For the purpose of clarification and avoidance of doubt I am making no allegation of wrong doing by any person or body corporate and I am not required to do so for it to be a disclosure protected by the 2014 protected disclosures act.”

Section 5 of the Act extends protection to all workers in all sectors who make a disclosure of relevant information that, in their “reasonable belief”, tends to show one or more relevant wrongdoings. The Act, as quoted above requires that a disclosure, in order to constitute a protected disclosure within the meaning of the Act must be a disclosure of relevant information. One of the fundamental components of the relevant information is that “in the reasonable belief of the worker, it tends to show one or more relevant wrongdoings…” In the instant case the Complainant pointed out unambiguously that he does not make any allegations of wrongdoing. I note the Complainant asserted at the adjudication hearing that he “does have a belief but he is not making accusations”. However, I do not find this explanation plausible. The Complainant outlines his concerns that a certain produce “…may have been used to claim export refunds at an inaccurate rate…” The Complainant made a specific point of emphasizing, on at least two occasions that he does not assert that any wrongdoing by any person or body corporate occurred. I do not find it conceivable that he did reasonably believed that the information disclosed tends to show a relevant wrongdoing. The import of the Complainant’s letter appears to be that the Complainant refers to inaccuracies which he is bringing to the attention of the Respondent which does not come within the definition of a protected disclosure.

I therefore find that the Complainant did not make a protected disclosure as defined by the Act.

For the sake of completeness, I have heard the evidence in relation to preliminary and substantive matters of this complaint. However, in the circumstance when I found that the Complainant did not make a protected disclosure within the ambit of the Act it is my view that it is not necessary to address the other matters in this decision.

Having carefully considered the parties’ submissions and the totality of the evidence put before me, I find that the claim advanced by the Complainant is not well-founded.

Protected disclosure- reasonable belief-