Complainant

Respondent

Anonymised Parties

A Financial Controller

An Arts and Entertainment Company

Representatives

Mr. Patrick O’Riordan B.L. on the instructions of Patrick J. O'Shea & Company Solicitors

Ms. Rachel O’Flynn B.L. on the instructions of JRAP O’Meara Solicitors

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-00008066-001

08/11/2016

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

CA-00008066-002

08/11/2016

Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

CA-00009499-001

01/02/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00009499-002

01/02/2017

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

CA-00014812-001

03/10/2017

The Complainant was employed by the Respondent as a Financial Controller from 25 August, 2010 to 9 September, 2016 when his employment was terminated. The Complainant was paid a net monthly salary of €2,638.99 and worked 35 hours per week.

The Complainant claims that he was subjected to penalisation contrary to Section 12 of the Protected Disclosures Act 2014 for having made protected disclosures within the meaning of the Act. The Respondent denies that the Complainant made protected disclosures within the meaning of Section 5 of the Act or that he was subjected to penalisation.

The Complainant claims that he was unfairly dismissed by the Respondent contrary to Section 6 of the Unfair Dismissals Acts. The Respondent disputes the claim of unfair dismissal and contends that the Complainant was not dismissed but rather resigned his position of his own volition.

The Complainant claims that he did not receive his statutory notice entitlements contrary to Section 4(2) of the Minimum Notice and Terms of Employment Act 1973 when his employment was terminated by way of dismissal on 9 September, 2016. The Respondent disputes this claim and contends that the Complainant was not entitled to statutory notice on the basis that he resigned from his employment of his own volition.

The Complainant claims that the Respondent failed to pay his outstanding holiday entitlements on the termination of his employment and he contends that this constitutes an unlawful deduction from his wages contrary to Section 5 of the Payment of Wages Act 1991. The Respondent disputes the claim under the Payment of Wages Act 1991 and contends that the complainant was paid his full holidays entitlements on the termination of his employment.

CA-00008066-001 – Complaint under the Protected Disclosures Act 2014

The Complainant claims that he was subjected to penalisation by the Respondent as a result of having made protected disclosures contrary to Section 12 of the Protected Disclosures Act 2014.

The Complainant submits that he made three separate protected disclosures to the Respondent within the meaning of the Act, namely:

1.       A disclosure made to the Respondent’s Chief Executive Officer, Ms. H, on 13 July, 2015 regarding the tax treatment of personnel employed in in-house productions, whereby he advised Ms. H that her proposal put forward in her e-mail dated 13 July, 2015 would, if implemented, be fraudulent accounting and would in his view be in breach of the policy directive issued by the Chairman.

2.       A disclosure made to Mr. M, Chairman of the Audit and Risk Committee, on 27 October, 2015 in relation to his concerns regarding the risk of possible non-compliance with taxation legislation on the payment of personnel employed for in-house productions and in particular with regard to the designation of their status as self-employed or employees.

3.       A disclosure made to the Chief Executive Officer, Ms. H, on 20 April, 2016 on concern of risk of non-compliance with the requirements of the alcoholic licence attaching to the venue as the in house café sells wine under the Respondent’s licence.

The Complainant submits that the protected disclosures made on 13 July, 2015 and 27 October, 2016 arose on foot of a long history of issues arising in February, 2014, September, 2014 and January, 2015 with further advices being sought from the Company Auditors and the Company Solicitor on 13 April, 2015. The Complainant submits that the protected disclosures were made on foot of the fact that only partial implementation of the legal advice and policy directive issued by the Chairman of the Board of Directors took place, and on foot of the Chairman’s concern that a potential criminal offence – the under declaration of income tax – was being committed.

The Complainant submits that the Respondent purported to have the disclosure of 27 October, 2015 investigated by two Company Directors, Ms. S and Mr. H, in or about 16 November, 2015 with their Report issuing on 3 December, 2015. The report noted that the Complainant felt that he was well motivated in making the protected disclosure but also found that whilst there was a requirement to improve compliance levels no wrongdoing had taken place and that they could not discern that there was any intent by any party of the Company to do so.

The investigators found that the disclosure did not constitute a protected disclosure and they stated that they were satisfied that the Complainant had in fact already utilised internal procedures with regard to what he perceived to be the outstanding compliance issues. The Complainant submits that these findings are worthy of criticism. The Complainant accepts that the Respondent was entitled to investigate the factual matrix of the matters complained of. However, it is submitted that the Respondent was not entitled to conclude that the disclosures made did not constitute a protected disclosure in circumstances where all that is required under Section 5 of the Protected Disclosures Act 2014 is that the employee has a reasonable belief of wrongdoing.

The Complainant submitted that the Respondent’s findings in relation to this matter are worthy of severe criticism in circumstances where:

      (i)            There was uncontroverted evidence that all personnel employed in a particular show were paid as self-employed without deduction of PAYE and PRSI contrary to concerns raised by the Respondent’s Auditors.

    (ii)            In circumstances where the Respondent’s solicitor’s letter of 13 April, 2015 required Tax Clearance Certificates, written contracts, public liability insurance for all contractors, fifteen Tax Clearance Certificates out of forty-five, twenty six written contracts out of fifty-three and no evidence of public liability insurance was furnished, evidencing very poor compliance.

   (iii)            The advices of the subsequent company auditors were characterised as them being satisfied in relation to the matter whereas it is submitted that the letter of 30 October, 2015 does not support this finding whatsoever, it noting that the Revenue in another case had accepted the case for categorisation of certain personnel as self-employed where the Board had obtained external expert advice and taken a reasonable view and implemented a policy based on the advice received. The letter was caveated that a written opinion had not been sought from the Revenue Commissioners and that it was therefore not possible for them to guarantee their opinion. This could not, in any way shape or form be categorised as the Company’s Auditors being satisfied particularly where an agreed policy had not been implemented.

   (iv)            There is no record of any subsequent review taking place despite reference to a programme of continuous improvement in the report of 3 December, 2015.

The Complainant in parallel to these events made a complaint to the WRC on 17 November, 2015 that he was not in possession of signed written terms of employment as required by the Terms of Employment (Information) Act 1994. In the context of that complaint, the Complainant made complaints regarding his reporting relationship and on foot of that made an allegation that the Respondent’s previous CEO endeavoured to misrepresent financial reporting and recording. The Complainant submits that this is the same subject matter as pertained to the protected disclosure of 13 July, 2015 (and, indeed, that of 27 October, 2015) previously as it dealt with the same issues concerning the alleged failure by the CEO to follow up the policies as set out by the Respondent regarding the categorisation of performers as self-employed or employees.

The Respondent commenced an investigation on foot of a letter of 25 February, 2016. This investigation related to the complaint by the Respondent that the Complainant repeated this assertion before the WRC despite being warned in advance that the assertion would enjoy qualified privilege.

The Complainant submits that it would appear the reason that the allegation was investigated was that it apparently had potentially grave and serious consequences for the reputation of the Respondent and the individuals concerned were entitled to take all necessary steps to protect their good name and reputation including recourse to legal proceedings.

The Complainant submits that this investigation was mounted on a spurious basis where any utterances made by him at the WRC hearing on 19 February, 2016 (which concerned a former staff member) were covered by either absolute or qualified privilege.

The Complainant submits that a further criticism is the obvious criticism that the matter investigated was the subject matter of a protected disclosure. This would confer immunity on it from any adverse consequences to the Complainant in circumstances where there was already a finding that it was not made maliciously and remained protected.

The Complainant submits that the Finance Committee conducted an investigation into this matter and contends it is noticeable that this investigation was carried out by the same two investigators (Mr. H and Ms. S) who made the flawed findings in respect of the protected disclosure in the first instance. Bearing in mind that they had already prejudged the issue in a flawed manner it was entirely inappropriate that these investigators be appointed.

The Complainant submits that the Respondent completed an investigation report in relation to the matter on 25 May, 2016 which made three findings against him, namely:

      (i)            His conduct in making the allegation, his conduct thereafter in the course of the investigation in his persistence in maintaining the allegation as true and his failure to exercise reasonable judgement in the use of grave language demonstrated a marked inability on his part to exercise reasonable judgement. It was alleged that the allegation made by him against the previous CEO was unfounded, vexatious and malicious and that his conduct generated significant concern such that the Respondent as the employer could no longer have the requisite trust and confidence and as required for the performance of the senior management position for which he was employed and it was alleged that this constituted gross misconduct.

    (ii)            The second finding was that this disregard of a caution previously issued to him and the manner in which he saw fit to communicate particularly in his interpretation of reasonable enquiries generated significant concern as to the ability to fulfil his role such that the Respondent no longer had the requisite trust and confidence in him and that this constituted insubordination and gross misconduct.

   (iii)            The third finding is that in seeking to reopen and reprise his purported protected disclosure which had been dealt with to finality constituted a failure to accept a decision and instruction of management and it was alleged that this constituted insubordination and gross misconduct.

The Complainant submits that the first finding was worthy of severe criticism for the following reasons;

      (i)            Quite apart from the fact that there was a reasonable apprehension of objective bias in the choice and viewpoint of the two investigators appointed, it ignored the context in which the allegation was repeated which was in the context of concerns over his contract and the reporting requirement. It is also arguably entirely wrong for the investigators to make a finding that the allegation was unfounded, vexatious and malicious in circumstances where it is submitted that there was ample evidence for the allegation as previous set out.

    (ii)            Furthermore, this is in breach of the Protected Disclosures Act 2014 in circumstances where the matter was the subject of a previous protected disclosure, which did not lose its protected status, yet the Complainant was penalised for same.

   (iii)            It was also entirely inappropriate to “gag” the Complainant in the context of an employment case against the employer.

It is submitted the second finding was completely unfounded in circumstances where there was no obvious caution (in a disciplinary sense) as it was acknowledged that there was no previous sanction. It also ignores the protected status of the comment under the Protected Disclosures Act 2014.

It is submitted that the third finding was entirely unfair. This was not an attempt by the Complainant to reopen his protected disclosure at all but rather a comment made in the context of his employment proceedings concerning the lack of provision of a written contract and the associated reporting requirement difficulties experienced by him regarding same. It would further appear that he was being penalised for exercising his right to participate fully in the investigation process and defend himself against spurious allegations. In fact, the investigation process explicitly required him to justify his comment. This could also be construed as an unlawful collateral attack on his WRC claim, his right to bring a claim to the WRC and by extension his continued employment.

The Complainant submits that he was suspended on 25 May, 2016 on foot of this report. The Report of the Disciplinary Appeals Committee upheld the findings (save that it found that the utterance was not made maliciously) and contained five recommendations as to sanction, namely:

      (i)            Final Warning;

    (ii)            Withdrawal of the allegation against the former CEO with written undertaking;

   (iii)            Further written undertaking regarding use of language;

   (iv)            Accept in writing the findings of the Respondent regarding the protected disclosures;

    (v)            Required to undergo supervision for twelve months i.e. demotion.

The Complainant submitted that items (ii) to (v) were not provided for in the Respondent’s disciplinary procedure and item (iv) was an attempt to circumvent the Protected Disclosures Act 2014 and was clearly unlawful. Not surprisingly these conditions were not acceptable to the Complainant. The Respondent then sought to treat his refusal to sign the required Letter of Undertaking as a resignation with the effect that his employment was terminated on 9 September, 2016.

The Complainant submitted that he was subjected to the following acts of penalisation for having made the protected disclosures, namely:

      (i)            He was suspended on 25 May, 2016 without any warning or opportunity to defend himself and escorted and banned from the premises never again to return. This also resulted in him being unable to attend the retirement party for one of his staff and any shows at the Respondent’s premises.

    (ii)            He had three periods of approved annual leave in 2016 but received notification of disciplinary action from the Respondent on either the day before this leave commenced or on the first/second day of the leave. The Complainant claims that his time spent on annual leave was interrupted by having received correspondence from the Respondent in relation to the disciplinary action.

   (iii)            He was prevented from discussing with the Respondent’s Auditors the Financial Statements for the year ending 31 March, 2016 the potential material liability, for inclusion in the financial statements, of under declaration of taxation and social insurance liabilities as he was suspended during the audit field work.

   (iv)            He was found guilty of disregarding a caution issued on 26 November, 2016 in a situation where no caution was issued and as a result found guilty of insubordination and gross misconduct.

    (v)            He was found guilty of gross misconduct for having made a statement at a WRC Adjudication Hearing on 19 February, 2016 about the Respondent’s previous CEO, Ms. H.

   (vi)            He received sanctions of supervision, which included demotion, and the requirement to undergo training arising from the findings of the Disciplinary Committee despite the fact that such sanctions were not provided for in the Respondent’s Disciplinary Policy.

(vii)            He received a final written warning as a result of making a protected disclosure.

(viii)            He did not receive natural justice and fair procedures from the disciplinary committee as questions which he requested to be put to the investigators were not so put. As a result, he did not receive their answers and therefore could not respond accordingly.

   (ix)            He did not receive a fair hearing as the people making up the investigators disciplinary committee and appeal board were not neutral.

     (x)            The investigators found him guilty of being malicious and vexatious and the disciplinary committee found him guilty of being vexatious for making the statement at the WRC Hearing.

   (xi)            Non-acceptance of the normal use of the English language. The Respondent took a particularly malign view of the terminology used by him contrary to the normal meaning of same as set out in the Cambridge and Oxford Dictionaries.

(xii)            Misrepresentation of the Investigators Report. In the Investigation Report, the Investigators quoted an excerpt from a letter of the advices received from the Respondent’s Auditors dated 26 April, 2016. It is submitted that by quoting only an excerpt of that letter, the Investigators misrepresented the advice contained within the said letter.

(xiii)            The Respondent breached his contract of employment as there was no provision within the said contract for demotion and supervision.

(xiv)            He was subjected to insulting and intimidating comments (such as the use of the word “pedantic”) by Members of the Audit and Risk Committee because he would not accept that the disclosure he made to the Chairman of that Committee on 27 October, 2015 was not a protected disclosure.

(xv)            On the one hand he was asked to substantiate his statement at the WRC Hearing and on the other hand when he did was found guilty of seeking to reopen and reprise his protected disclosures. The Complainant claims that he was put in an invidious position when he was asked to substantiate his statement at the WRC Hearing and was required to refer to his protected disclosure in circumstances where some of the data overlapped.

(xvi)            He was advised that he did not state at the time of making some disclosures that the disclosure was a protected disclosure. The Complainant submits that there is no such requirement in the Act to state at the time of making a disclosure that it is a protected disclosure.

(xvii)            His salary was stopped on 31 August, 2016.

(xviii)            He received a threat on 8 September, 2016 that unless he signed the letter of undertaking his employment would be terminated under the guise that he had resigned.

CA-00008066-002 – Complaint under the Unfair Dismissals Act 1997

The Complainant submits that he made a complaint to the WRC on 17 November, 2015 under the Terms of Employment (Information) Act 1994 claiming that the Respondent had not provided him with a written statement of his terms and conditions of employment. The hearing of this complaint was held on 19 February, 2016 and the Respondent subsequently carried out an investigation and disciplinary process in relation to a statement he made at the said hearing. The Complainant submits that the investigation which the Respondent commenced on 25 February, 2016 ultimately led to the termination of his employment on or about 9 September, 2016.

The Complainant contends that the termination of his employment was a dismissal, not a resignation, in circumstances where there was no voluntary act on his behalf which led to the termination of his employment. The Complainant contends that there appears to be an attempt by the Respondent to dress up the termination of his employment as a resignation, and his claim thereby being one of constructive dismissal. This proposition is wholly unsustainable. The employer sought to treat his refusal to sign the required Letter of Undertaking as a resignation with the effect that his employment was terminated on 9 September, 2016. It is submitted that there is much English authority on this issue and the Respondent relied upon the case of Sandhu -v- Rijk Transport Limited[1] where it was held by the Court of Appeal at paragraph 13 that: “resignation as the authorities have indicated implies some form of negotiation and discussion: it predicates a result which is a genuine choice on the part of the employee. Plainly, if the employee has had the opportunity to take independent advice and then offers to resign, that fact will be powerful evidence towards resignation rather than dismissal”. It is submitted that there is no precedent for the form of “deemed resignation” by the Respondent in the instant case being seen as a genuine resignation and it cannot be seen as anything other than a dismissal cloaked as a resignation. This does not even fall into the category of a constructive dismissal, as the Complainant did not physically take any step to resign himself.

The Complainant submits that further support for this proposition is provided by the case of Sheffield -v- Oxford Controls Company Limited[2] which is authority for theproposition that if an employee resigns because the employer has threatened that if he does not resign he will be dismissed the mechanics of the resignation do not cause it to be other than a dismissal. It is submitted that the situation is arguably even worse in the instant case, in that, the employer appears to have deemed the conduct of the Complainant to be a resignation in circumstances where he would not sign the required Letter of Undertaking.

The Complainant submits that the said Letter of Undertaking required him to undertake the following actions:

      (i)            To accept that the protected disclosure on 27 October, 2015 was not a protected disclosure.

    (ii)            To accept that he would present the annual statutory financial statements to the Board of Directors and for Audit without recognising in the financial statements the potential material liability of under declaration of taxation and social insurance liability on the employment of production personnel for in-house productions.

   (iii)            To accept that a disclosure for it to be a protected disclosure should be much more serious than the definition of a protected disclosure as provided for in the Protected Disclosures Act 2014.

   (iv)            To accept implementation of compliance in so far as is practicable.

    (v)            To refrain from using language which would restrict/prohibit him carrying out his legal obligations under the Criminal Justice Act 2011 and the Companies Act, from carrying out legal/professional duties to company auditors and would also prohibit him from making a protected disclosure in the future.

The Complainant submits that he could not sign the letter of undertaking as it was contrary to his statutory rights, legal obligations and the Protected Disclosures Act 2014. The Complainant submits that he was unfairly dismissed on 9 September, 2016 under the guise that he had resigned because he would not sign the letter of undertaking.

The Complainant submits that the investigation of 25 February, 2016, the subsequent disciplinary process and subsequent termination of his employment were all linked, wholly or partly, to the making of protected disclosures by him.

It is further submitted that both the investigation, disciplinary process, appeal and subsequent termination of employment of the Complainant were replete with, and permeated throughout, by instances of gross and obvious procedural and substantive unfairness as follows:

      (i)            The fact of Mr. W, Chairman (who clearly had an aminus towards the Complainant) being involved throughout the process in terms of his initial complaint regarding the utterances made at the WRC, his selection of the investigators, approval of the report of the investigators, approval of the report of the disciplinary committee, his own involvement in the appeal committee, involvement throughout the in the finance committee and his involvement in the termination of employment.

    (ii)            The involvement of the Finance Committee generally throughout in light of the evidence given by the Complainant of his difficulties with same and in particular difficulties with directions of Ms. S of 17 July, 2015.

   (iii)            The fact that Ms. S and Mr. H were selected to carry out an investigation into the protected disclosures made by the Complainant in October, 2015 despite the evidence of Ms. S hat she was drawing on her own knowledge from the finance committee and previous dealings with the Complainant in addressing that matter.

   (iv)            The fact that Ms. S and Mr. H were subsequently selected to carry out the investigation into the allegations of the utterances made by the Complainant at the WRC despite their manifestly flawed findings on 2 December, 2015 with regard to the Complainant’s protected disclosure.

    (v)            The fact that Ms. S and Mr. H who were initially required to investigate the factual substance of the allegations made by the Complainant at the WRC hearing appear to have turned it into an investigation into the Complainant.

   (vi)            The fact that no regard appears to have been had by Mr. W (who reported the issue), Mr. H or Ms. S that the comments made by the Complainant were made on an occasion of absolute or qualified privilege and no external advice or consideration appears to have been taken regarding same.

(vii)            The fact that the investigation appears to have commenced on the flawed premise that the WRC was an open forum.

(viii)            The fact that the investigation appears to have proceeded on the disputed or false premise that the WRC Adjudication Officer administered a caution to the Complainant.

   (ix)            The behaviour of Ms. S in particular at the meeting on 31 March, 2016 in pressing the Complainant repeatedly regarding his findings of the previous protected disclosure which was entirely unwarranted conduct amounting to a subversion of the Protected Disclosures Act 2014 and leading to entirely unsustainable findings regarding the Complainant’s purported reprisal of previous purported protected disclosure.

     (x)            The fact that the investigators appear to have exceeded their mandate by making not only factual findings but a finding that the Complainant was guilty of gross misconduct and had acted maliciously, in circumstances where that finding was touching on the matter of sanction and binding the hands of the disciplinary committee.

   (xi)            The fact that a suspension was imposed after the conclusion of the investigation and commencement of the disciplinary process can only be construed as a punishment and form of penalty rather than for the purposes of the investigation. The Complainant relies upon the case of Bank of Ireland -v- Reilly[3] where Noonan J. stated: “Thus, even a holding suspension ought not to be taken lightly and only after full consideration of the necessity for it pending a full investigation of the conduct in question. It will normally be justified if seen as necessary to prevent a repetition of the conduct complained of, interference with evidence or perhaps to protect persons at risk from such conduct. It may perhaps be necessary to protect the employer’s own business and reputation where the conduct in question is known by those doing business with the employer. In general, however, it ought to be seen as a measure designed to facilitate the proper conduct of the investigation and any consequent disciplinary process”. It is submitted that none of the reasons identified in that judgement are applicable to the facts in this case (which ultimately involved remarks in a closed WRC forum regarding a departed member of staff in the context of a contractual dispute), nor was the suspension remotely justifiable to facilitate the proper conduct of the disciplinary process, where there was no suggestion that the Complainant was anything but co-operative.

(xii)            The decision of the disciplinary committee to effectively alter the contractual terms of the Complainant to include four items that did not form part of his contract including a requirement that he withdraw his allegations against Ms. H, omit all reference to endeavouring to misrepresent financial reporting and recording, provide a written undertaking to the company in accordance the letter attached that he would refrain from using grave, inflammatory, unwarranted misguided and/or loaded language in the performance of his duties, requiring him to accept the entirely flawed findings of the company regarding the investigation of his protected disclosure issued on 3 December, 2015 and requiring him to submit to workplace supervision in his role for a period of twelve months was entirely unfair, unlawful and unjustifiable. It was also entirely disproportionate.

(xiii)            The failure of the appeal committee to withdraw the finding of reprising the previous protected disclosure in circumstances where Mr. W acknowledged and admitted that the Complainant had raised this matter in response to questioning from the investigators.

(xiv)            The imposition of a manifestly flawed and unwarranted Letter of Undertaking which effectively muzzled and restrained the Complainant in the performance of his future duties.

(xv)            The treating of the Complainant as having resigned on a unilateral basis for failing to have signed the said Letter of Undertaking. The flawed categorisation of the Complainant’s conduct as being gross misconduct in the first place.

(xvi)            The failure to offer any appeal process from the decision to terminate his employment by treating his conduct as a resignation.

Issue of Jurisdiction

The Complainant disputes the argument put forward by the Respondent to the effect that if it is held by the Adjudication Officer that the disclosures made by him do not amount to protected disclosures within the meaning of Section 5 of the Protected Disclosures Act 2014, that his claim of unfair dismissal under the Unfair Dismissals Acts cannot succeed. The Complainant submits that even in the event of a finding that the disclosures as made do not constitute protected disclosures within the meaning of the Protected Disclosures Act 2014, his claim of unfair dismissal can, and must, proceed to hearing before the Adjudication Officer.

The Respondent made the following points in support of its position on this issue, namely:

      (i)            The claim brought by the Complainant is a claim for unfair dismissal under Section 8 of the 1977 Act.

    (ii)            Sections 6 and 7 of the 1977 Act make it clear that a claim of unfair dismissal based on the making of a protected disclosure is a sub-category of unfair dismissal that is still subject to the Act.

   (iii)            The claim form makes clear that the Complainant is claiming unfair dismissal both by reason of making a protected disclosure and lack of fairness of procedures.

   (iv)            The burden of proof remains on the employer to justify the dismissal.

    (v)            Neither the 2014 Act or the 1977 Act impose a burden of proof on the employee.

   (vi)            There is a statutory presumption that the disclosure is a protected disclosure – Section 5(8) of the 2014 Act provides that it shall be presumed, until the contrary is proved, that it is. The burden of proof is therefore on the employer to prove the contrary i.e. that the disclosure is not a protected disclosure.

(vii)            The contention that, in the event that the Complainant fails to discharge the burden of proof that his disclosure is not a protected disclosure, his claim under the 1997 Act cannot succeed, is wrong in law.

(viii)            Even if the WRC finds that the disclosure is not a protected disclosure (by means of the employer successfully rebutting the presumption) the WRC must then examine the overall fairness of the dismissal, in circumstances where the burden of proof to prove fairness remains on the employer. The Complainant relies upon the case of Kuzel -v- Roche[4]where it was held by the Court of Appeal (Civil Division) that: “I agree that when an employee positively asserts that there was a different and inadmissible reason for his dismissal, he must produce some evidence supporting the positive case, such as making protected disclosures. This does not mean, however, that, in order to succeed in an unfair dismissal claim, the employee had to discharge the burden of proving that the dismissal was for that different reason. It is sufficient for the employee to challenge the evidence produced by the employer to show the reason advanced by him for the dismissal and to produce some evidence of a different reason”. The Complainant further contends that the Respondent has failed to cite any authority to support its proposition that it is well settled case law that where the primary ground upon which the complaint is not made out or not upheld the dismissal claim cannot proceed and must fail.

CA-00014812-001 – Complaint under the Unfair Dismissals Acts

The Complainant submits that he made a clear, unequivocal and valid claim relating to unfair dismissal which was lodged with the WRC on 8 November, 2016 (CA-0008066-002 refers), within six months of the termination of his employment.

The Complainant submits that the Respondent made a submission in July and September, 2017 during the course of the within proceedings that any dismissal claim brought by him was solely reliant on whether his disclosures were found to be protected disclosures in the context of his prior penalisation claim and that his unfair dismissal claim effectively stood or fell on that basis. This submission was not accepted by the Complainant. It is submitted that the unfair dismissal claim brought by the Complainant on 8 November, 2016 (CA-0008066-002) is an entirely freestanding claim brought under Section 8 of the Unfair Dismissals Acts and has an entirely separate life of its own from the penalisation claim which was brought under the Protected Disclosures Act 2014. However, for avoidance of all doubt the Complainant opted to submit a further complaint form (namely, CA-00014812-001) to the WRC on 3 October, 2017 in light of the submission made by the Respondent that the claim for unfair dismissal was interdependent and linked to the penalisation claim.

The Complainant submits that in circumstances where both claim forms (namely, CA-0008066-002 and CA-00014812-001) relate to the same event on the same date and deal with the same subject matter that the proper approach to be taken by the WRC is the following:

·         The claim of 8 November, 2016 should be fully investigated and considered by the WRC to include all submissions and evidence regarding unfairness of procedures and substantive unfairness on all grounds, not limited to the making of protected disclosures or linkage with the penalisation claim.

·         In light of the foregoing there was no basis to require the Complainant to elect as between the different claims since they are the one claim.

·         If, in spite of the above submissions, the WRC is inclined to find against the Complainant in respect of the two above grounds, the WRC should then, and only in that scenario, consider the second claim lodged on 3 October, 2017. In that regard, and only in that scenario the Complainant request that the time allowed for the submission of that claim be extended due to reasonable cause in the very particular and unusual circumstances that arose in this case.

CA-00009499-001 – Complaint under the Minimum Notice and Terms of Employment Act, 1973

The Complainant claims that he did not receive his statutory notice entitlements contrary to Section 4(2) of the Minimum Notice and Terms of Employment Act 1973 when his employment was terminated by way of dismissal on 9 September, 2016.

CA-00009499-002 – Complaint under the Payment of Wages Act 1991

The Complainant claims that he had accrued an entitlement of 26.67 days annual leave (amounting to €6,767.51) when his employment was terminated by the Respondent on 9 September, 2016. The Complainant claims that the Respondent failed to pay him in lieu of his untaken annual leave entitlements on the cessation of his employment, and therefore, this amounts to an unlawful deduction from his wages contrary to Section 5 of the Payment of Wages Act 1991.

The Complainant contends that unpaid holiday entitlements clearly fall within the definition of “wages” for the purposes of Section 1 of the Payment of Wages Act 1991. The Complainant submits that in light of the said definition of “wages” and the provisions of Section 5 of the Act, clearly the failure to pay the appropriate holiday pay in this instance falls within the definition, and therefore, the claim is properly made under Section 6 of the Act.

The Complainant provided the following breakdown in relation to the outstanding holiday pay and time in lieu which he claims was unlawfully deducted from his wages on the termination of his employment.

Balance 31/10/2015                   6.50 days

November/December 2015       3.33 days

2016 Entitlement                         20.00 days

Time in lieu for additional

days worked in April, 2016         5.0 days

Days taken 1/11/2015

to 25/5/2016                                   1.0 days

Total outstanding days               33.38 days

Days Paid on termination

Of employment                               7.16 days

Days due                                           26.67 days  

Amount Due                                   €6,767.51

CA-00008066-001 – Complaint under the Protected Disclosures Act 2014

The Respondent submits that the Complainant was employed as Financial Controller from 2010 until he resigned from his employment in September, 2016.

The Respondent denies that each of the alleged protected disclosures, namely the disclosures made on 13 July, 2015, 27 October, 2015 and 20 April, 2015, constitute protected disclosures within the meaning of Section 5 of the Protected Disclosures Act 2014. The Respondent addressed in detail each of the alleged protected disclosures as set out hereunder.

The Alleged Protected Disclosure on 13 July, 2015

The Respondent accepts that the Complainant wrote to the CEO, Ms. H, on 13 July, 2015 alleging that payment to personnel for in-house productions would constitute fraudulent accounting. On foot of this disclosure, on 1 September, 2015 the Respondent’s Chairman wrote to the Respondent’s Auditors seeking their view as to the disclosure made by the Complainant. By letter dated 8 October, 2015, the Auditors provided an opinion that the approach of the Respondent was reasonable. Further, their advice was that the Respondent’s Board had not attempted to mislead in order to perpetrate “fraudulent accounting”. A copy of the advises of the Auditors were given in full to the Complainant on 10 November, 2015. The Respondent’s Finance Committee nominated two directors and members of the Respondent’s Board (namely Ms. S and Mr. H) to conduct an investigation into the Complainant’s alleged protected disclosure.

At the investigation meeting on 16 November, 2015, the following transpired:

a)       In his reply to questions from members of the Investigation Team, the Complainant answered, “Absolutely not” in reply to the question as to whether he believed fraudulent accounting had actually taken place.

b)      The Complainant stated that he had not made the allegation of “fraudulent accounting” but had merely given his best advice to the CEO of the Respondent.

The investigation concluded as the Complainant assured the Investigation Team that no fraudulent accounting had occurred. The outcome of the investigation into the disclosure made by the Complainant, was communicated to him by letter dated 26 November, 2015. The letter noted the following:

a)       The Complainant had stated to the Investigators that he never intended to make an allegation of fraudulent accounting.

b)      That the Complainant had confirmed to the Investigators that fraudulent accounting had not in fact taken place.

c)       That the Complainant was “uniquely placed to appreciate the gravity of the term “fraudulent accounting”, including in the context of its possibility or potential. We would strongly advise you to exercise caution in any futures use of this term”

d)      That the Investigators regarded the investigation as having concluded.

e)      That as per the Complainant’s request, the Investigators had contacted the company’s Auditors to advise them that the Complainant had never intended to make an allegation of fraudulent accounting.

The Investigators wrote to the Complainant on 2 December, 2015 and therein confirmed that the investigation had concluded and no findings had been made against him. They further advised the Complainant that were he dissatisfied, he could pursue a grievance. The matter rested and the Complainant did not lodge a grievance.

The Respondent submits that the disclosure made on 13 July, 2015 does not constitute a protected disclosure within the meaning of Section 5 of the Act and makes the following points:

·         Nowhere on its face does the Complainant’s document dated 13 July, 2015 recite the words “protected disclosure”.

·         The disclosure made on 13 July, 2015 does not disclose a relevant wrongdoing within the meaning of Section 5(3) of the Act.

·         The Respondent relies upon Section 5(5) of the Act on the basis that the alleged relevant wrongdoing does not involve an act or omission on the part of the Respondent and it related to a matter which was the function of the Complainant to detect, investigate or prosecute.

·         Even if the Complainant had a reasonable belief as to wrongdoing on 13 July, 2015 (which is disputed), the Complainant himself readily accepted on 16 November, 2015 that no wrongdoing had in fact occurred.

·         The Complainant did not and could not have had a reasonable belief of any wrongdoing, when regard is had (i) to his extensive prior professional experience in the finance area, as a Financial Controller, and (ii) in circumstances where in his role as a Financial Controller he was privy to all prior communications, correspondence and advices had from both the Respondent’s legal and financial advisors pertaining to the issue of taxation of personnel working for and/or in the company.

·         The effect of the conduct and admissions of the Complainant made on 16 and 30 November, 2015 is that no disclosure was in fact made by him, whether a protected disclosure or indeed any disclosure. The subsequent conduct/admissions of the Complainant as aforesaid have the effect in law of rendering the Complainant’s so-called “disclosure” of 13 July, 2015 void ad initio.

·         By his conduct and admissions in 2015, the Complainant has manifestly accepted that (i) he did not have a reasonable belief that wrongdoing occurred and (ii) no wrongdoing occurred. The Complainant is estopped from arguing the contrary assertion now.

The Alleged Protected Disclosure on 27 October, 2015

The Respondent submits that by e-mail dated 27 October, 2015, the Complainant advised the CEO of the Respondent that he would be contacting Mr. M, Chairman of the Audit & Risk Committee, regarding the risk of possible non-compliance with taxation legislation on payment of personnel for in-house productions. The Complainant attached a document to this e-mail which was entitled as being a protected disclosure. In summary, the nature of the alleged protected disclosure was that in-house personnel were being treated as contractors when they should be treated as employees for revenue purposes. By reply e-mail on the same date Mr. M asked the Complainant “What do you recommend?” In response and by e-mail on the same date, the Complainant replied: “A review of the Payment of Personnel for In House Productions by the [Respondent’s] House Taxation Advisors”.

On 28 October, 2015, Mr. M e-mailed the Complainant and advised that he was going to bring the Complainant’s correspondence to the attention of the Board at the next meeting. At the Board meeting on 4 November, 2015, the Board determined that the matter raised by the Complainant should be investigated by the Finance Committee and Mr. H and Ms. S were nominated to investigate this matter.

The Respondent sought advice from its statutory auditors on the issue raised by the Complainant and the Auditors confirmed in their advices that they were satisfied with the practice adopted by the Respondent. A copy of the Auditor’s advices was provided to the Complainant on 10 November, 2015. The Respondent held a meeting with the Complainant on 16 November, 2015 in relation to the matter and in summary the Complainant’s stated concern was that the level of compliance, in that not 100% of personnel were being treated as independent contractors for tax/PRSI purposes. At the meeting the Complainant was asked if he accepted the advices of the Auditors and he replied “Yes. But there is a very low level of compliance”. At the meeting the Complainant also stated: “Fine. I will accept whatever the Board and Finance Committee decides. They are gospel. Hands up I am probably guilty of implementing policies too strict. I will always accept the decision”.

The Investigators communicated their outcome to the Complainant by letter dated 3 December, 2015. In that letter, the Investigators stated inter alia;

      (i)            The Respondent accepted the advices of its solicitor of 13 and 14 April, 2015.

    (ii)            The Respondent advised that there was no conflict between the advices, but the Company Solicitor’s advice supersedes all advices.

   (iii)            The Respondent’s audited accounts were endorsed by its auditors.

   (iv)            The Respondent had sought advices from their current auditors who advised in their letter dated 30 October, 2015 that they were satisfied with the practice adopted by the Respondent.

    (v)            The Respondent went on to state that the existence of compliance issues was recognised, but as had been acknowledged by its professional advisors, the company not only ensured compliance in so far as is practicable, but had in place a programme of continuous improvement to mitigate risk and improve compliance levels where possible.

   (vi)            The Respondent went on to advise that it was noted that the CEO specifically authorised the Complainant to make payments in respect of persons providing services to in-house productions, and therefore, in carrying out the procedures adopted by the company, the Complainant was at all times acting under the instruction of the CEO in this regard.

(vii)            The Respondent went on to state that it was noted that the Complainant stated that he did not make the purported protected disclosure lightly and the Respondent acknowledged that the Complainant felt he was well motivated in doing so.

In their letter dated 3 December, 2015, the Investigators advised that having considered the matter at length, they found, while there was a requirement to improve compliance levels, no wrong doing had taken place. Further, the Investigators advised that they could not discern that there was intent by any party or the company to do so.

In summary, the Investigators advised the Complainant:

a.       The Respondent accepted the advice of the Company Solicitor with regard to service providers.

b.       There was a system of continuous improvement and monitoring in place to ensure compliance.

c.       The Complainant was required to carry out his duties as instructed by the CEO/Respondent.

d.       The Investigators did not find that reasonable grounds to sustain a belief that any wrongdoing had taken place or of any intent to do so.

e.       The Complainant could appeal from the findings of the Investigators to the Chairman of the Respondent within seven days. No appeal was submitted by the Complainant.

The Respondent made the following points in relation to the disclosure made on 27 October, 2015:

·         The disclosure does not disclose a relevant wrongdoing within the meaning of Section 5(3) of the Act.

·         The Respondent relies upon Section 5(5) of the Act on the basis that the alleged relevant wrongdoing does not involve an act or omission on the part of the Respondent and it related to a matter which was the function of the Complainant to detect, investigate or prosecute. The Respondent deployed an appropriate response to the matter raised by the Complainant, in that they took specific and appropriate action, namely seeking written advices from their Auditors and Tax Advisors, which they furnished on 30 October, 2015.

·         In determining whether the disclosure was a protected disclosure regard must be had to whether the Complainant had a reasonable belief which tended to show a wrongdoing. If the Complainant had a real and pressing concern as a whistleblower, or a reasonable belief that the taxation regime being operated by the Respondent was unlawful or wrongful, then to any reasonable person the most obvious and appropriate step would have been for him to request the Respondent or its Auditors obtain a written opinion from the Revenue Commissioners. In merely asking the Respondent’s Auditors to provide an opinion s to the legitimacy of the taxation regime being operated by the Respondent, it is submitted that the Complainant did not have a reasonable belief that of wrongdoing or anything approaching a reasonable belief of wrongdoing but rather he wanted a level of professional comfort or validation in circumstances where there had been a change of Auditors in August, 2015.

·         If the Complainant made a protected disclosure on 27 October, 2015 (which is disputed) and even if he had a reasonable belief of alleged wrongdoing at that juncture, the contrary was proven by the Respondent’s Auditors by reason of the content of their letter of advices dated 30 October, 2015 (which was furnished to the Complainant on 10 November, 2015).

·         The Complainant by his conduct (i) in requesting advices from the Respondent’s own Auditors only and not from the Revenue Commissioners and (ii) his own acknowledgement that he himself was too strict in the manner of implementation and (iii) his express acknowledgement that he would accept the decision of the Board/Finance Committee, has demonstrated that he did not have a reasonable belief of wrongdoing but rather was seeking a level of professional comfort or assurance.

·         The Complainant did not and could not have had a reasonable belief of wrongdoing or anything approaching a reasonable belief of wrongdoing, by reason of (i) his extensive prior experience as Financial Controller and (ii) in circumstances where in his role of Financial Controller he was privy to all prior communication, correspondence and advices from the Respondent’s legal and financial advisors pertaining to matters of taxation and personnel.

·         The Complainant expressly accepted the professional advices of the Respondent’s statutory auditors i.e. that the regime being operated by the Respondent was legitimate. The Complainant cannot accept the advices on the one hand, whilst at the same time maintaining that the practice is unlawful or that a wrongdoing has occurred. The Respondent submits that by reason of his own professional skill and experience the Complainant knew or ought to have known that the matter was one where continuous improvement was required to mitigate the risk and improve compliance levels.

·         The Investigators found that the Complainant’s disclosure did not constitute a protected disclosure. The Complainant was also advised of the right to appeal these findings to the Respondent’s Chairman but failed to do so. The Respondent relies on the Doctrine of Estoppel. By his conduct and admissions in 2015, the Complainant has manifestly accepted that (i) he did not have a reasonable belief that wrongdoing occurred and (ii) no wrongdoing occurred. The Complainant is estopped from arguing the contrary assertion now.

The Alleged Protected Disclosure on 20 April, 2016

The Respondent submitted that the Complainant made a very grave statement in the course of a WRC Hearing on 19 February, 2016 in respect of the former CEO (Ms. H), namely that she had endeavoured to misrepresent financial reporting and recording. In this regard, the Respondent deployed an investigation in accordance with its internal procedures and this commenced in early March 2016 and was conducted throughout April and May, 2016. The outcome of that investigation was that the disciplinary process should be deployed in respect of the Complainant. Accordingly, the Complainant was suspended by the Respondent with effect from 25 May, 2016. Thereafter, a disciplinary hearing took place and the Complainant was issued with a final written warning, and required to furnish an undertaking (that he would withdraw the allegation against the former CEO) and that he would commit to supervision. These sanctions were upheld on appeal. The Complainant was advised of the outcome of the appeal on 10 August, 2016. The Complainant ultimately did not return to work and resigned with effect from 9 September, 2016.

The Respondent submitted that it is noteworthy that it was only after the Respondent advised the Complainant that the disciplinary sanctions would stand (which was communicated to the Complainant by letter dated 10th August, 2016) that the Complainant notified the Respondent that the April, 2016 disclosure was a protected disclosure. This alleged protected disclosure related to “the risk of non-compliance with the requirements of the alcoholic licence attaching to the venue as the house café sells wine under the [Respondent’s] licence”. The Complainant made two further alleged protected disclosures in correspondence prior to his resignation (dated 12 August, 2016). One relating to VAT on booking fees and another pertaining to alcohol being allowed into the auditorium. It is noteworthy that nowhere in the complaint form alleging Unfair Dismissal and/or penalisation is there reference to either of those alleged protected disclosures.

The Respondent’s CEO advised the Complainant on 15 August, 2016 that his new purported protected disclosures would be investigated in accordance with the internal procedures (i.e. the company had adopted the WRC Code of Practice procedures on protected disclosures) upon his return to work. However, the Complainant resigned and did not return to work. However, notwithstanding the foregoing, the Respondent requested its company solicitor to undertake a review of the liquor licencing in relation to the liquor licencing regime. The Respondent operates a liquor agency agreement with the proprietors of the café, which said agreement was drafted by a Senior Counsel. The Respondent submits that the Complainant did not and could not have a reasonable belief of a relevant wrongdoing with respect to the selling of alcohol in circumstances where the arrangement and legal agreement had been in place since 2011 and which was at all material times known to him.

The Respondent submits that no relevant wrongdoing was either disclosed or occurred. It is submitted that the Respondent’s liquor licences are subject to transparent annual public application (which involves advertising, court application, fire authority, local authority and Garda consent) and further, direct application to Revenue for renewal of the Theatre licence. The Respondent licenses are comprised of an annual public dance licence, an annual public music and singing licence and a Publican’s (Theatre) licence. All of the foregoing was known to the Complainant. Accordingly, the Respondent submits that there was no basis in fact or in law for the Complainant to believe that wrongdoing had occurred.

Further, the Respondent had an unannounced, on the spot inspection of their liquor licenses by Gardaí in or about January, 2016 and again in July, 2016. There have been no objections to the grant of any of the Respondent’s licenses and no enforcement actions have been taken since 2005. The Respondent’s Board is satisfied that no wrongdoing has occurred.

The Respondent’s Auditors carried out a review of the purported additional protected disclosures made by the Complainant pertaining to VAT, Ticketing and alcohol consumption in the auditorium. A further review of these matters as raised by the Complainant was undertaken by the CEO and the company’s Auditors. The CEO and the Company Auditors had previously a review on foot of an unannounced, on the spot inspection carried out by a person who identified himself as a Revenue Official attending an event on 26 October, 2016. Further to that inspection, there was a meeting between Revenue officials and the Auditors in or about 29 October, 2016 and no adverse findings were reported and no action was taken by Revenue. This was at all times known to the Complainant. The Audited Accounts as prepared by the company’s Auditors for the years ended 31 March, 2015 and 31 March, 2016 do not disclose any observations or reportable matters. The Respondent relies upon the advices of its professional advisers and submits no relevant wrongdoing has been disclosed or occurred.

The Respondent submits that the alleged protected disclosure on 20 April, 2016 does not constitute a protected disclosure within the meaning of Section 5(2) and 5(3) of the Protected Disclosures Act 2014.

The Respondent submits that the Complainant has failed to make the case that he suffered penalisation as a consequence of his having made protected disclosures. The Respondent submits that the Complainant has cited nine instances of alleged penalisation in his WRC Complainant Referral Form (which was submitted on 11 November, 2016), namely:

a.       Suspended

b.       Threats of demotion

c.       Received unfair treatment

d.       Coercion

e.       Intimidation

f.        Harassment

g.       Threats of Reprisal

h.       Disciplined

i.         Reprimanded

The foregoing alleged acts of penalisation are denied by the Respondent and it provided detailed evidence and both oral and written submissions to refute the alleged penalisation contented by the Complainant. The Respondent submits that the Complainant did not suffer penalisation/detriment, by reason of his having made protected disclosures (which the Respondent denies constituted protected disclosures.

The Respondent submits that the steps taken and the course deployed by it, namely: the investigation into the statement/allegation made by the Complainant at the WRC Hearing on 19 February, 2016 and the resultant Disciplinary Hearing, Appeal Hearing and their respective findings and recommendations, together with the implementation thereof, arose from the statement made by the Complainant at the WRC Hearing and his conduct thereafter in the course of the process deployed by the employer. The Respondent submits that the steps it took and the course it deployed, did not and cannot reasonably be held to have been connected with the alleged protected disclosures (which are denied) made by the Complainant. The Respondent submits that the “operative cause” or the reason it took the steps which it did and deployed the course it did, was not the alleged protected disclosures made by the Complainant (which the Respondent denies were protected disclosures), but the conduct of the Complainant in making the statement he did at the WRC Hearing on 19 February, 2016 and his conduct thereafter in the course of the process deployed by the Respondent.

The Respondent submits that the Complainant has failed to satisfy the test for determining penalisation which was enunciated by the Labour Court in the case of O’Neill -v- Toni & Guy Blackrock Limited[5] and as adopted by the Labour Court in the case of Aidan & Henrietta McGrath Partnership -v- Anna Monaghan[6]. Further the Respondent submits that the penalisation (which penalisation is denied) as alleged by the Complainant, is too remote to meet the test enunciated by the Labour Court.

CA-00008066-002 – Complaint under the Unfair Dismissals Act 1997

The Respondent denies that the Complainant was dismissed and contends that he resigned from his employment.

The Respondent submitted that the Complainant made a very grave statement in the course of a WRC Hearing on 19 February, 2016 in respect of the former CEO (Ms. H), namely that she had endeavoured to misrepresent financial reporting and recording. In this regard, the Respondent deployed an investigation in accordance with its internal procedures and this commenced in early March 2016 and was conducted throughout April and May, 2016. The outcome of that investigation was that the disciplinary process should be deployed in respect of the Complainant. Accordingly, the Complainant was suspended by the Respondent with effect from 25 May, 2016. Thereafter, a disciplinary hearing took place and the Complainant was issued with a final written warning, and required to furnish an undertaking (that he would withdraw the allegation against the former CEO) and that he would commit to supervision. These sanctions were upheld on appeal. The Complainant was advised of the outcome of the appeal on 10 August, 2016.

The Respondent submits that the Complainant was unwilling to return to work, despite being asked to do so on four occasions and despite having been offered a meeting by the Chairman on 8 September, 2016. The Complainant failed and/or refused to return to work and the Respondent regards him as having resigned from his employment with effect from the 9 September, 2016.

The Respondent submits that the Complainant’s failure to return to work was a volitional, conscious and deliberate decision made by him. It further submits that the genesis of the investigation and disciplinary process which was set in train was wholly and entirely due to the Complainant’s own conduct and gross misconduct in making and maintaining a statement he made about the former CEO, Ms. H. It is beyond controversy that the Respondent offered the Complainant the opportunity to withdraw his statement and he failed to do so. The Respondent submits that the Complainant is entirely misguided in continuing to assert that the alleged termination of his employment (which termination is denied) was due to his having made disclosures which were allegedly protected disclosures. The Respondent denies that any/all of the disclosures made by the Complainant were protected disclosures and by his own conduct the Complainant is now estopped from now asserting a contrary position

The Respondent denies the Complainant’s contention that the investigation, disciplinary process, appeal and the alleged termination of his employment was “replete with, and permeated throughout, by instances of gross and obvious procedural and substantive unfairness”. The Respondent submits that at all material times the Complainant was:

      (i)            Fully aware of the allegations made against him.

    (ii)            Offered the opportunity to retract the statement which he made about the former CEO, Ms. H.

   (iii)            Afforded all rights pursuant to natural justice and fair procedures.

   (iv)            At all times offered the right of representation, including the right to legal representation and which he failed to avail of, or exercise.

    (v)            A sanction of dismissal was modified to a final written warning, in recognition of the Complainant’s prior positive contribution to the organisation.

   (vi)            Afforded the right of appeal.

(vii)            Asked to return to work on four occasions.

(viii)            Was offered a meeting with the Chairman, so as to impress upon him the disposition of the Respondent towards him admits desire that he return to work and to his role with the Respondent.

The Respondent made the following submissions in rebuttal of the Complainant’s claim of unfair dismissal, namely:

      (i)            The Respondent disputes the Complainant’s contention that Mr. W, Chairman had an “aminus” towards him and contrary to what is asserted by the Complainant, Mr. W was not “involved throughout the process”. Mr. W was present at the WRC hearing when the Complainant made the offending statement about Ms. H. Mr. W reported the matter to the Finance Committee which resolved that the matter required investigation and Ms. S and Mr. H were nominated and appointed by the Board to investigate the matter. When Mr. H and Ms. S produced their report, it was the Board who resolved that the matter should proceed to a disciplinary hearing and they appointed the members of the disciplinary panel, namely Ms. A, Mr. T and Mr. S. Once they produced their findings, and on foot of the Complainant’s appeal from their decision, it was the Board who appointed the persons to hear the appeal, namely, Ms. M, Mr. F, and Mr. W. The insinuation or suggestion that the Respondent and its Board was either entirely under the control of Mr. W or that in his role as Chairman he conducted himself such that the Respondent’s organisation was his personal fiefdom, is a work of complete fiction.

    (ii)            The Complainant did not object at any time to the appointment of Ms. S and Mr. H as investigators into the alleged protected disclosures made by him. It is noteworthy that the Complainant did not appeal the findings by Mr. H and Ms. S of 2 December, 2015 that his disclosure was not a protected disclosure notwithstanding that he was expressly advised by them that he could do so.

   (iii)            The Complainant did not object at any time to the appointment of Ms. S and Mr. H as investigators into the statement which the Complainant made at the WRC on the 19 February, 2016.

   (iv)            It is denied that the statement made by the Complainant at the WRC Hearing on 19 February, 2016 is privileged. Further, and without prejudice to the foregoing, the Complainant repeated this statement thereafter in the course of the investigation and also maintained his statement as being true. Further, when asked to withdraw this statement and not to repeat same in the future, the Complainant persistently and repeatedly refused to do so and refused to provide the Respondent with the written undertaking in those terms. The abject and blatant disregard which the Complainant showed for Ms. H’s reputation and good name, together with his refusal to withdraw the statement or not repeat it, was and remains a source of very real concern for the Respondent in circumstances where the statement is generative of questionable conduct and to financial impropriety on the part of Ms. H.

    (v)            The Respondent is entirely satisfied that the suspension of the Complainant was warranted and appropriate, in the circumstances where he would not retract the statement about Ms. H despite having been afforded several opportunities to do so and in circumstances where his judgement was in question.

   (vi)            The Complainant fails to comprehend the gravity of his conduct which amounted to gross misconduct that the appropriate sanction was dismissal. The sanctions deployed, and which fell far short of dismissal (namely, final written warning for twelve months, that he withdraw the allegations, that he not repeat the allegation, that he refrain from using grave or inflammatory language, that he accept the finding of 3 December, 2016 and from which he had not appealed or otherwise demurred), were sanctions arrived at having taken into account the Complainant’s prior positive contribution to the Respondent’s organisation. It is submitted that the sanctions deployed was wholly appropriate when regard is had to the grave nature of the misconduct of the Complainant in making the statement which he did and his conduct throughout the investigation.

(vii)            The letter of undertaking which the Respondent required the Complainant to sign was most necessary, appropriate and warranted having due regard to the nature of the gross misconduct of the Complainant, the statement which he made about the former CEO, Ms. H, and which statement he maintained was true, and which he failed/refused to retract (despite having been afforded the opportunity to do so on 26 February, 2016). Further, the letter of undertaking was both necessary and appropriate in circumstances where the Respondent’s Auditors had formally confirmed in their letter of 27 April, 2016 that what Ms. H had done or sought to do, could not constitute “endeavouring to misrepresent financial reporting and recording”. Despite having been furnished with those advices from a well-regarded national firm of auditors, the Complainant maintained his position, namely that he was correct and the former CEO had endeavoured to commit wrongdoing. In the face of the evidence before it, the nature and import of the statement made by the Complainant, his refusal to withdraw it and his insistence that it was true, and the fact that the Complainant held a key role as Financial Controller, the Respondent’s Appeal Panel had to ensure that measures were put in place such as would protect the Respondent’s business whilst allowing the Complainant to return to his role.

(viii)            The Respondent did not terminate the Complainant’s employment. The Complainant failed to return to work. The Complainant was afforded the right to appeal from the findings of the disciplinary panel. The Complainant exercised his right of appeal to the Appeal Panel. No further right of appeal exists, either pursuant to the Respondent’s Disciplinary Policy, natural justice or at common law. Fundamentally, the Complainant did not like the recommendations of the Appeal Panel, and he decided not to adhere to them. The Complainant was free to make that choice and the respondent could not compel him to return to work. There was no dismissal. Further and without prejudice to the foregoing, if there was a dismissal (which the Respondent strenuously denies), the Complainant contributed to his own dismissal and did so to a mammoth extent.

Issue of Jurisdiction

Without prejudice to the foregoing, the Respondent submits that the claim under the Unfair Dismissals Acts only falls due for consideration by the Adjudication Officer in the event of a finding that a protected disclosure was made by the Complainant. The Respondent submits that if the disclosure(s) do not constitute protected disclosures, the Adjudication Officer has no jurisdiction to hear the claim of alleged unfair dismissal.

The Respondent made the following submissions in support of its position on this issue, namely:

        (i)            The claim is brought by the Complainant pursuant to Section 6 of the Unfair Dismissals Act 1977. In contrast, the procedure by which a claim is brought is set out in Section 8(2) of the Act, and which further prescribes the manner in which a claim of unfair dismissal must be processed by the DG of the WRC.

      (i)            Section 6 of the Unfair Dismissals Act prescribes certain grounds for dismissal which “shall be deemed” to be unfair. One of the grounds at Section 6(2)(ba) is “the employee has made a protected disclosure”. The Act does not speak of “sub-category” as the Complainant contends.

    (ii)            The complaint form for Unfair Dismissal submitted by the Complainant bearing reference number (CA-00008066-002) was submitted by the Complainant, and at a time when he had the benefit of independent and professional legal advice. The Complaint Form in respect of Unfair Dismissal as submitted contains some 42 references to “disclosure” or “protected disclosure”. The main narrative submitted by the Complainant in the Complaint Form concludes with the following: “I have not resigned and I have stated that I have not resigned. I was unfairly dismissed for making protected disclosures protected by the 2014 protected disclosures act”. The Respondent contends that by reason of the repeated references in the Complaint Form to “disclosures” and “protected disclosures” and the content of the Complainant’s narrative and his characterisation of the reasons for the alleged unfair dismissal, the sole and only reasonable deduction/inference is that the Complainant’s complaint is one of dismissal for having made protected disclosures.

   (iii)            The Respondent refutes the Complainant’s contention that that he is entitled to claim unfair dismissal both by reason of making a protected disclosure and the lack of fairness of procedures. The Respondent submits that those factors are not made clear in the Complaint Form and further there is no meaningful reference to fairness of procedures or otherwise in the Complaint Form. The Respondent submits that as a matter of law, an Adjudication Officer is not entitled to proceed with a hearing of an Unfair Dismissal claim simpliciter where protected disclosures are not upheld. Further, and/or in the alternative, the Respondent submits that the Complainant is not entitled to proceed with a hearing of a claim of unfair dismissal simpliciter, and an Adjudication Officer has no jurisdiction to do so, where the Respondent has rebutted the statutory presumption in respect of the alleged protected disclosures.

   (iv)            It is well settled law that where the primary ground upon which a claim is not made out or not upheld, the dismissal claim cannot proceed and must fail. The Respondent submits that by analogy where a complainant does not establish either the fact of his having been an employee or the relevant one years’ service under the Unfair Dismissals Acts, a claim of unfair dismissal cannot proceed.

    (v)            The Respondent refers to the Complainant’s contention that even were the Respondent to successfully rebut the presumption that the disclosures were protected disclosures, the Adjudication Officer can proceed and examine the overall fairness of the dismissal. Firstly, the Respondent submits that the Complainant therefore implicitly accepts as a matter of law that Section 5(8) of the Protected Disclosures Act 2014 is a presumption which is capable of rebuttal. Secondly, the Respondent submits that the Complainant’s assertion that the unfair dismissal case can proceed even where the Respondent successfully rebuts the presumption of a protected disclosure, is an assertion that is manifestly wrong in law and is obtuse. The Complainant’s assertion is counter-intuitive and further is wholly at variance with the established practice and procedure of the WRC, the Labour Court and formerly the EAT and jurisprudence of those fora.

In summary, the Respondent submits that the Complainant submitted a claim or unfair dismissal pursuant to Section 6 of the Unfair Dismissals Acts and relied entirely upon the “protected disclosure ground” as the ground giving rise to his dismissal. The Respondent has rebutted the statutory presumption of protected disclosure and accordingly, the hearing of a claim for unfair dismissal cannot now proceed for want of jurisdiction.

CA-00014812-001 – Complaint under the Unfair Dismissals Acts

The Respondent submits that the Complainant cannot pursue two claims for alleged unfair dismissal, but that the Complainant must rather and more properly elect as between his claim for protected disclosures (being claim CA-00008066-002) and his claim for alleged unfair dismissal simpliciter (being claim CA-00014812-001).

The Respondent submits that the Complainant resigned from his employment on 9 September, 2016, and accordingly, he did not work a notice period and neither is he entitled to any notice. Any claim of alleged unfair dismissal ought to have been brought by the Complainant no later than 6 months post his resignation on the 9 September, 2016. In short, the Complainant had until 8 March, 2017 within which to lodge a claim of unfair dismissal with the WRC. The claim of Unfair Dismissal simpliciter being claim (CA-00014812-001) was not received by the WRC until 3 October, 2017, which was some twelve months and three weeks post his resignation and cessation of his employment.

The Complainant submits that an Adjudication Officer may only extend time by a further 6 months so as to admit a claim and further, where the Adjudication Officer is satisfied as to reasonable cause having prevented the Complainant from submitting a claim. With respect to the within claim (CA-00014812-001), the Respondent submits where the claim was lodged some twelve months and three weeks post the date of cessation of employment, an extension of a further 6 months would mean the claim ought to have been lodged by 8 September, 2017. The Respondent submits that this did not occur and therefore, the complaint is stature barred.

Further, the Respondent submits that the time for bringing a claim can only be extended where a Complainant satisfied the Adjudication Officer that there was reasonable cause which prevented the Complainant from bringing the claim. The Respondent submits that it is noteworthy that the Complainant did not, either during the course of the hearings or in his written submissions, cite any grounds, circumstances or explanation as to why he failed to lodge his unfair dismissal claim simpliciter within the 6-month timeframe prescribed by statute, and only did so some twelvemonths and three weeks [post cessation of employment. It is submitted that no evidence of reasonable cause was put before the Adjudication Officer by the Complainant. Further, the Respondent submits the Complainant in his complaint form for his claim of unfair dismissal simpliciter (CA-00014812-001) merely states that the reason for his not having lodged the claim any earlier was because he was unaware that if the disclosures were deemed not to be protected disclosures, that his unfair dismissal claim would also fail.

The Respondent submits that whilst the Complainant’s lack of knowledge as to the status, import, interplay or otherwise of his claim (CA-00008066-002) is unfortunate, ignorance of the law cannot excuse his failure to lodge the second claim of unfair dismissal within time. The Respondent relies upon the decision of the Labour Court in the case of Servier Ireland Industries Limited -v- Juanita Wilkinson[7]in support of its contention that the time ought not to be extended in respect of the unfair dismissal claim simpliciter (CA-00014812-002).

The Respondent also submits that the Complainant had access to legal advice at all material times relating to the referral of within claims under the Unfair Dismissal Acts and further complaints under the Payment of Wages Act 1991 and Minimum Notice and Terms of Employment Act 1973 (which were lodged with the WRC on 1 February, 2017.

CA-00009499-001 – Complaint under the Minimum Notice and Terms of Employment Act, 1973

The Respondent disputes the claim under the Minimum Notice and Terms of Employment Act, 1973 and contends that the Complainant was not entitled to statutory notice on the basis that he resigned from his employment of his own volition.

CA-00009499-002 – Complaint under the Payment of Wages Act 1991

The Respondent disputes the claim under the Payment of Wages Act 1991 in relation to his annual leave entitlements. The Respondent submits that any claim for outstanding annual leave should have been brought pursuant to the Organisation of Working Time Act, 1997.

The Respondent submits that the Complainant carried forward 10.8 days annual leave into the leave year 2016. The Complainant’s annual leave entitlement for the leave year 2016 (i.e. from 1 April, 2016 until his resignation on 9 September, 2016) was 8 days which in addition to the leave carried into the leave year 2016/17 gave him an entitlement to 18.8 days annual leave. The Respondent submits that the Complainant took 17 days annual leave in 2016 and therefore the balance of annual leave owed to him for the leave year commencing 1 April, 2016 was 1.8 days. The Respondent submits that the Complainant was paid 7.16 days annual leave post resignation, so therefore no additional annual leave entitlement arises.      

The Respondent submits that the following is the situation with regards to the Complainant’s annual leave:

         10.8 Days         Annual Leave carried forward into 2016 leave year.

Plus   8.0 Days       [or 1.65 weeks] Annual Leave accrued in 2016 leave year.

         18.8 Days       Total Annual Leave entitlement 2016.

Less   17.0 Days       Annual Leave Taken by the Complainant in 2016.

           1.8 Days       Balance of Annual Leave owed to the Complainant for leave year commencing        

                                 1/4/2016

The Respondent submits that the Complainant’s assertion that an employee who is suspended may not be entitled to or regarded as having periods of annual leave during a period of suspension, is manifestly illogical. Further, it is contrary to the oral evidence of the Complainant himself, whereby he confirmed that during the course of the investigation and disciplinary process deployed in the period from February, 2016 to August, 2016 and whilst he was on suspension, the Complainant spent time on holidays in a number of different locations. Further, it is beyond controversy that the disciplinary hearing was re-scheduled to permit the Complainant to avail of annual leave. Further, when the Respondent sought that the Complainant return to work in August, 2016, it was noted that he was on annual leave.

CA-00008066-001 – Complaint under the Protected Disclosures Act 2014

The Law

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.

(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.

Section 2 of the 2014 Act provides that:

“‘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;”

The Complainant claims that he was subjected to penalisation contrary to Section 12 of the Protected Disclosures Act 2014 after having made three separate protected disclosures on 13 July, 2015, 27 October, 2015 and 20 April, 2016. The Complainant contends that the “relevant wrongdoings" insofar as are relevant to this case fall within the ambit of Section 5(3)(a), (b) and (f) of the Act. The Respondent denies that any of the alleged protected disclosures constitute protected disclosures within the meaning of Section 5 of the Protected Disclosures Act 2014.

The Labour Court held in the case of Aidan & Henrietta McGrath Partnership -v- Anna Monaghan[8] that: “The Court must first establish that a protected disclosure has been made before it can examine whether a penalisation within the meaning of the Act has occurred”. Therefore, the first issue I must address is whether or not the above-mentioned disclosures made by the Complainant constitute protected disclosures within the meaning of Section 5 of the Act.

A “protected disclosure” is defined in Section 5(1) of the Act as the disclosure of “relevant information” made by a worker. To qualify as “relevant information”, a worker must reasonably believe that the information disclosed tends to show one or more “relevant wrongdoings” and the wrongdoing must come to the workers attention in connection with their employment. Section 5(5) provides that a matter is not regarded as “relevant wrongdoing” if it is the function of the worker or the worker’s employer to detect, investigate or prosecute the matter and the matter does not consist of, or involve an act or omission on the part of the employer.

Section 5(8) imposes a presumption that a disclosure is a protected disclosure unless the contrary is proven. However, the Adjudication Officer will still have to be satisfied, on the balance of probabilities, that the Complainant has made a protected disclosure within the meaning of the 2014 Act, and therefore this is a matter for the Complainant to establish. If the making of a protected disclosure within the meaning of the 2014 Act is not established, then the complaint must fail.

It was common case that the Complainant was employed by the Respondent as Financial Controller at the material time in question concerning the alleged protected disclosures. It was not in dispute that all of the disclosures alleged to be protected disclosures were made by Complainant to senior management within the Respondent.

I will firstly consider the alleged protected disclosures made by the Complainant on 13 July, 2015 and 27 October, 2015 as the subject matter of both disclosures is similar, namely concerning issues in relation to the Respondent’s compliance with taxation legislation. In this regard, I note that the document which the Complainant sent to the Respondent’s CEO, Ms. H, on 13 July, 2015 setting out his concerns in relation to the tax treatment of personnel employed in in-house productions did not state that he was making a protected disclosure. It was only at a later juncture that the Complainant indicated that the information contained therein was a protected disclosure. It was not in dispute that the Complainant indicated in his disclosure on 27 October, 2015 that he was making a protected disclosure under the Protected Disclosures Act, 2014.

It is important to note that the Respondent did not accept at the material time in question that the Complainant made his disclosures that they constituted protected disclosures within the meaning of the Act. However, notwithstanding the foregoing, I am satisfied that the Complainant’s disclosures were treated with the utmost of seriousness by the Respondent. In this regard, I note that the Respondent conducted extensive investigations in relation to the matters raised by the Complainant in the context of both disclosures which ultimately concluded that the taxation regime which the company was operating was not unlawful, and ultimately that no wrongdoing had occurred.

The Code of Practice on Protected Disclosures Act 2014 (Declaration) Order 2015 (S.I. No. 464 of 2015) gives guidance and sets out best practice in relation to the procedures that should be adopted with regard to the disclosure of information regarding wrongdoing in the workplace and how to deal with the disclosure of such information.

“48. A further examination or an investigation may be appropriate. Any examination or investigation should be conducted using objective and fair principles with regard to the principles of natural justice. It is important that the outcome or conclusion of any such examination or investigation is communicated to the worker making the disclosure.”

and

“49. It is important that the worker making the disclosure has a sense that the complaint is being taken seriously and that action is being taken, not least with a view to ensuring that the concerns raised are dealt with internally. The organisation should ensure that as much feedback as possible is given having regard to sensitivities around, for example, confidentiality.”

I note that the Respondent adopted the Model Whistleblowing Policy as set out in S.I. No. 464 of 2015 for the purposes of the investigation that was conducted into the Complainant’s disclosure on 27 October, 2015. I am satisfied that the Respondent conducted a thorough and extensive investigation in relation to this disclosure which adhered to the principles and best practice enunciated in the Model Whistleblowing Policy in terms of the manner in which the investigation was conducted.

Having regard to the foregoing, I accept that the Respondent deployed an appropriate response to the concerns raised by the Complainant in terms of his disclosures on 13 July, 2015 and 27 October, 2015 and that it took specific and appropriate action, namely by conducting investigations which included seeking written advice from its Auditors and Tax Advisors which was made available to the Complainant. It is clear that the professional advices obtained by the Respondent in response to the concerns raised by the Complainant confirmed that the taxation regime which it was operating was not unlawful and that no wrongdoing had, or was likely, to occur.

Having regard to the foregoing, I do not accept that the Complainant could have had a reasonable belief following the conclusion of the aforementioned investigations that the information which he disclosed tended to show a “relevant wrongdoing” by the Respondent in terms of its compliance with taxation legislation. In the circumstances, I find that the Complainant’s disclosures do not constitute protected disclosures within the meaning of Section 5 of the Act. Accordingly, I find that the Respondent has rebutted the presumption provided in Section 5(8) of the Act.

I will next consider the alleged protected disclosure made by the Complainant on 20 April, 2016. The alleged protected disclosure in this instance relates to an e-mail sent by the Complainant to the Respondent’s CEO on 20 April, 2016 in which he raised certain issues and sought clarifications in relation to in-house café selling alcohol under the Respondent’s liquor license. I note that in this correspondence, the Complainant asked if it would be possible to get a copy of the agreement with the café allowing them to sell alcohol under the Respondent’s license and sought written confirmation from the Respondent’s solicitor in relation to verbal advice which had already been given in relation to this matter.

In considering this matter, I note that the Complainant’s e-mail on this date did not indicate or state that he was making a protected disclosure. Furthermore, I am satisfied that this matter was raised by the Complainant in the course of his role as Financial Controller, and more specifically, in the context of the financial recording and accounting arrangements in relation to this matter. It is noteworthy that the Complainant states in the penultimate paragraph of his e-mail that “In summary, for the purpose of clarification and avoidance of doubt I am raising no question or query about the café selling alcohol under our licensee. I am just looking for documentation for the file … “. In the circumstances, I do not accept that there was any relevant information disclosed by the Complainant at that juncture or subsequently in relation to this matter which would indicate that he had a reasonable belief that tended to show a relevant wrongdoing had been or was likely to occur.

Furthermore, I am satisfied that the Respondent adduced compelling and credible evidence that the company was fully compliant with the relevant licensing laws in relation to the operation of its liquor licenses and I have not been presented with any credible evidence to suggest the situation was otherwise. In the circumstances, I fully concur with the Respondent’s contention that the Complainant did not and could not have a reasonable belief of a relevant wrongdoing with respect to the selling of alcohol in circumstances where the arrangement and legal agreement had been in place since 2011 and which was at all material times known to him.

Having regard to the foregoing, I find that the Complainant’s disclosure on 20 April, 2016 does not constitute a protected disclosure within the meaning of Section 5 of the Act. Accordingly, I find that the Respondent has rebutted the presumption provided in Section 5(8) of the Act.

I have also considered whether or not the matters which were the subject of the Complainant’s disclosures on 13 July, 2015, 27 October, 2015 and 20 April, 2016 can be construed as relevant wrongdoings in the context of the provisions of Section 5(5) of the Act. In this regard, I note that the Labour Court held in the case of Liam Carr -v- Donegal County Council[9] that: “The complaints which are alleged to be protected disclosures in the within case (a) could not reasonably be argued to be outside of the function of a Station Officer in the Fire Service to detect, and (b) relate to matters other than an alleged omission of the Employer. On a plain reading of the Act therefore the Court finds that the complaint made by the Appellant in this case is misconceived. The complaints made by the Appellant in pursuance of his duties as Station Officer were not Protected Disclosures within the meaning of the Act”.

I am satisfied that the matters raised in the Complainant’s disclosures on 13 July, 2015 and 27 October, 2015, namely concerns relating to the manner in which personnel employed in in-house productions should be designated for the purpose of compliance with taxation legislation, were made by him pursuant to the discharge of his duties as Financial Controller. I am also satisfied that the matters raised by the Complainant in the context of the e-mail on 20 April, 2016 relating to the financial recording and accounting arrangements concerning the Respondent’s liquor licenses was also made by him pursuant to the discharge of his duties as Financial Controller.

In the circumstances, I find that it cannot be reasonably argued that any such matters in relation to the potential compliance or otherwise with taxation legislation and/or licensing laws are matters which fall outside the remit of the Complainant’s role to detect as Financial Controller and that they relate to matters other than an alleged omission on the part of the employer. Accordingly, I find that the matters raised by the Complainant in pursuance of his duties as Financial Controller were not protected disclosures within the meaning of Section 5 the Act.

Therefore, given that I have found the Complainant’s disclosures do not constitute protected disclosures within the meaning of Section 5 of the Act, I am not required to consider the alleged acts of penalisation.

CA-00008066-002 – Complaint under the Unfair Dismissals Acts

Jurisdictional Issue

The Respondent contends that the Adjudication Officer has no jurisdiction to inquire into the above claim under the Unfair Dismissals Acts in the event of a finding that the alleged protected disclosures made by the Complainant, do not constitute protected disclosures within the meaning of Section 5 of the Protected Disclosures Act 2014.

The Complainant disputes the Respondent’s position in relation to this issue of jurisdiction and contends that even in the event of a finding that the disclosures as made do not constitute protected disclosures within the meaning of the Protected Disclosures Act 2014, his claim of unfair dismissal can, and must, proceed and the Adjudication Officer must then examine the overall fairness of the dismissal, in circumstances where the burden of proof to prove fairness remains on the employer.

Having regard to my findings above (as detailed in CA-00008066-001), that the alleged protected disclosures made by the Complainant on 13 July, 2015, 27 October, 2015 and 20 April, 2016 do not constitute protected disclosures within the meaning of Section 5 of the Protected Disclosures Act, 2014, I must therefore decide whether or not I have the jurisdiction to proceed and inquire into the Complainant’s claim of unfair dismissal under the Unfair Dismissals Acts.

In considering this issue it is useful to set out the relevant statutory provisions within Section 6 of the Unfair Dismissals Acts. Subsection (1) contains the general overriding proposition that the dismissal of an employee is deemed to be unfair unless, having regard to all the circumstances, there were substantial grounds justifying dismissal. Subsection (2) provides that dismissals which result “wholly or mainly” from certain specified grounds are deemed to be unfair including the dismissal of an employee resulting from making a ‘protected disclosure’. Subsection (4) is without prejudice to the generality of Subsection (1) and accordingly any dismissal which results wholly or mainly from one or more of the matters specified in subsection (4) must be such that the dismissal is justified. In determining whether the dismissal of an employee was unfair or not, Subsection (6) provides that it will be for the employer to ensure that there were substantial grounds justifying the dismissal. The burden of proof in this respect is firmly on the employer. Subsection (7) makes clear that the Adjudication Officer may have regard to the reasonableness of the employer’s conduct in relation to the dismissal.

I note that it was stated in Dismissal Law in Ireland (Second Edition) by Mary Redmond at paragraph 12.10 (in commenting on the specified grounds in Subsection (2) that are deemed to be unfair) that: “These reasons do not automatically constitute unfair grounds for dismissal because sub-ss (2) and (3) of s.6 begin “Without prejudice to the generality of subsection (1) of this section” and sub-s (1) deems every dismissal unfair for the purposes of the Act unless, having regard to all the circumstances, there are substantive grounds justifying the dismissal. Fairness enters dismissals law at every point”.

The Respondent contends that by reason of the repeated references in the Complainant’s complaint form (CA-000080662-002) to “disclosures” and “protected disclosures” and the content of the narrative and his characterisation of the reasons for his alleged unfair dismissal, the sole and only reasonable deduction/inference is that the Complainant’s complaint is one for having made protected disclosures. The Respondent further submits that the complaint form does not make any meaningful references to the procedural fairness or otherwise of his alleged dismissal.

I do not accept the Respondent’s position in relation to this issue of jurisdiction. Firstly, I note that it was not in dispute that the Complainant had in excess of 12 months’ service with the Respondent and therefore has the requisite service under the Act to bring a general claim of Unfair Dismissal.

Secondly, I note that the complaint form submitted by the Complainant (CA-000080662-002) states that the reason for his dismissal was “I was dismissed under the guise that I resigned for not signing a letter of undertaking”.I am satisfied that the requirement to sign the letter of undertaking arose following the conclusion of the disciplinary process which the Respondent conducted into the Complainant’s alleged gross misconduct in relation to his statement about the former CEO, Ms. H. The Complainant claims that the manner in which this disciplinary process was conducted was lacking in fairness and that the alleged dismissal was both procedurally and substantively unfair.

Notwithstanding the fact, that I have decided that the disclosures made by the Complainant do not constitute protected disclosures within the meaning of the 2014 Act, I am satisfied that the Complainant’s complaint under the Unfair Dismissals Acts constitutes a general claim and having regard to the provisions of Subsections (1) and (7) of Section 6 of the 1977 Act, I am obliged to consider both the substantive and procedural fairness or otherwise of the alleged dismissal.

Having regard to the foregoing, I find that I have jurisdiction to inquire into the Complainant’s claim under the Unfair Dismissals Acts (i.e. CA-000080662-002).

Substantive Issue

I will next consider the substantive claim of unfair dismissal made by the Complainant. The fact of dismissal was very much in dispute between the parties. Accordingly, it is a matter for the Complainant to establish that he has been dismissed by the Respondent.

The Respondent denies that the Complainant was dismissed and contends that he resigned from his position of his own volition after failing to return to work following the conclusion of a disciplinary process which had been conducted as a result of his gross misconduct. The Complainant was adamant that he was dismissed by the Respondent and totally refutes the contention that he resigned from his employment. The Complainant further contends that this case does not fall into the category of a constructive dismissal.

Section 1 of the Unfair Dismissals Act 1997 provides that:

"dismissal", in relation to an employee, means—

(a) the termination by his employer of the employee's contract of employment with the employer, whether prior notice of the termination was or was not given to the employee.

(b) the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer, or

(c) the expiration of a contract of employment for a fixed term without its being renewed under the same contract or, in the case of a contract for a specified purpose (being a purpose of such a kind that the duration of the contract was limited but was, at the time of its making, incapable of precise ascertainment), the cesser of the purpose”.

Therefore, the first issue which I must consider is whether or not the Complainant was actually dismissed from his employment within the meaning of Section 1 of the Acts or if, as contended by the Respondent, that he left this employment of his own volition after failing to return to work following the conclusion of the disciplinary process.

In considering this issue it is necessary to examine the events and circumstances that occurred in the period prior to the termination of the Complainant’s employment. It is clear that there had been issues between the parties for a number of years prior to the termination of the Complainant’s employment in relation to ongoing concerns which he held regarding the risk of possible non-compliance with taxation legislation on the payment of personnel employed for in-house productions and in particular with regard to the designation of their status as self-employed or employees. As I have already stated in my findings above (in relation to CA-00008066-001), I am satisfied that the Respondent dealt with the Complainant’s concerns in relation to this issue in an appropriate manner by investigating the issues raised by him and seeking advice from the relevant professional advisors which ultimately confirmed that the taxation regime which it was operating was not unlawful and that no wrongdoing had or was likely to occur.

It was not in dispute that the Respondent invoked a disciplinary process against the Complainant on the basis that he had made a “very grave” statement about the former CEO, Ms. H, at a WRC hearing on 19 February, 2016, namely that she had endeavoured to misrepresent financial reporting and recording. Having regard to the evidence adduced, I am satisfied that the statement made by the Complainant was totally unwarranted and unsubstantiated and had the potential to cause considerable reputational damage to both the Respondent and Ms. H. Furthermore, I am satisfied that the Respondent had an obligation to challenge the veracity of the Complainant’s statement, as the matter if left unchallenged, could have had very serious implications for all concerned.

I note that the Respondent subsequently obtained written advice from its auditors which confirmed that what Ms. H had done or sought to do could not constitute “endeavouring to misrepresent financial reporting and recording” and this advice was made available to the Complainant. I do not accept that the statement made by the Complainant at the WRC Hearing was protected by qualified or absolute privilege, and in any event, it is clear that the Complainant was subsequently afforded a number of opportunities to retract the statement but failed to do so, but instead persisted in maintaining that the allegation against Ms. H was true. Therefore, in the circumstances, I find that the Respondent did not act unreasonably in terms of its decision to initiate an investigation and to subsequently invoke disciplinary procedures in relation to the matter.

The EAT held in the case of Rafter -v- Connaught Gold Co-Op - Aurivo Co-Op Society Limited T/A Aurivo Co-Operative Society Limited[10] that:

“Under Section 6 (4) (b) of the Unfair Dismissals Act 1977 an Employer is entitled to dismiss an Employee for ‘conduct’. No definition is given to this term in the Act. Accordingly, an act, minor in one situation, can be gross misconduct in another situation. All will depend on such factors as the nature of the work of the employee, the ‘conduct’ involved and the level of responsibility accorded to the employee. There are no hard and fast rules. Every case must be decided with regard to the facts of that particular case. 

The role of the Tribunal in unfair dismissal cases is not to establish an objective standard but to ask whether the decision to dismiss comes within the band of reasonable responses an employer might take having regard to the particular circumstances of the case. The test of reasonableness is applied in deciding whether or not the dismissal of the employee was unfair, which includes the nature and extent of the enquiry carried out by the employer prior to a decision to dismiss, and, the conclusion arrived at by the employer on the basis of the information resulting from such enquiry. 

Once the investigation has been concluded, one must look at the reasonableness of the conclusion arrived at and the test for ‘reasonableness’ was established in the EAT case of Noritake (Ireland) Ltd V Kenna UD 88/1983, in which three simply tests were set down to determine same, namely, 

(1)  Did the Employer believe that the Employee misconducted himself as alleged?. If so,

(2)  Did the Company have reasonably grounds to sustain that belief? If so,

(3)  Was the penalty of dismissal proportionate to the alleged misconduct?”

I am satisfied that the Respondent had an established Grievance and Disciplinary Procedure in place which conforms to the general principles and procedures enunciated in the The Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order, 2000[11]. I have carefully considered the manner in which the disciplinary procedures were applied in the present case and I am satisfied that the Complainant was given advance notice of meetings, was advised of the seriousness of the matters being investigated, was afforded the opportunity to attend an investigation meeting and a separate disciplinary hearing, was offered representation at all meetings and had all allegations put to him and was given the opportunity to respond to them. He was also afforded an appeal process. I find that the manner in which the Respondent conducted the investigation, disciplinary hearing and appeal complied with fair procedures and natural justice.

I note that the findings of the Disciplinary Panel included that the Complainant’s conduct in making the allegation, his conduct thereafter in maintaining the allegation as true and his failure to exercise reasonable judgement in the use of grave language demonstrated a marked inability on his behalf to exercise reasonable judgement such as might be expected from a Financial Controller; that the allegation the Complainant made against Ms. H was unfounded and vexatious; that his conduct had resulted in diminished trust and confidence in his ability to carry out his role as Financial Controller; that his conduct and actions in seeking to reopen and reprise his purported protected disclosures which had previously been dealt with to finality constituted insubordination; and ultimately, that his conduct had amounted to gross misconduct.

The Disciplinary Panel held that the appropriate disciplinary sanction in accordance with the Company Disciplinary Procedure was dismissal. However, having taken a number of mitigating factors into consideration, including the Complainant’s significant contribution in his role since 2010 and previous unblemished disciplinary record, it was decided that a penalty less than dismissal was appropriate. The findings of the Disciplinary Panel were subsequently upheld on appeal by the Appeals Board.

In this regard, the sanctions deployed against the Complainant were a final written warning for twelve months, that he withdraw the allegation, that he not repeat the allegation, that he refrain from using grave or inflammatory language and that he accept the finding of 3 December, 2016 in relation to the alleged protected disclosure (and from which he had not appealed or otherwise demurred). The Complainant was also required to sign a letter of undertaking to withdraw the allegation against Ms. H; that he would not repeat the allegation; that he would refrain from using grave, inflammatory, misguided and/or loaded language in the performance of his duties; that he would accept the company’s findings of 3 December, 2016 in relation to his purported protected disclosures.

Having regard to the totality of the evidence adduced, I find that the disciplinary sanctions deployed by the Respondent and the requirement for the Complainant to sign the letter of undertaking was, in all the circumstances, a reasonable and proportionate response by the Respondent having regard to the nature of the misconduct committed by him.

Furthermore, I am satisfied that the Complainant’s position was clearly still available to him following the conclusion of the disciplinary process and I note that the Respondent engaged extensively with him thereafter with a view to facilitating his return to work. I find that the Complainant’s refusal to accept the disciplinary sanctions and to sign the letter of undertaking was wholly unreasonable in the circumstances and ultimately that he chose not to return to work, thereby terminating his employment, of his own volition.

Having regard to the foregoing, I find that the Complainant was not dismissed from his employment within the meaning of Section 1 of the Acts and that he left his employment of his own volition with effect from 9 September, 2016.   Accordingly, I find that the complaint under the Unfair Dismissals Act, 1977 is not well founded and must fail.

CA-00009499-001 – Complaint under the Minimum Notice and Terms of Employment Act 1973

Having regard to the totality of the evidence adduced, I find that the Complainant resigned from his employment of his own volition and therefore, was not entitled to statutory notice under the Act. Accordingly, I find that the complaint under the Minimum Notice and Terms of Employment Act 1973 is well not founded.

CA-00009499-002 – Complaint under the Payment of Wages Act 1991

The Complainant claims that the Respondent made unlawful deductions from his wages contrary to Section 5 of the Payment of Wages Act 1991 in relation to outstanding holiday pay and time in lieu on the termination of his employment.

The first issue I must address in the context of this complaint is a jurisdictional issue raised by the Respondent in relation to this claim. The Respondent contends that the within claim is not properly before the Adjudication Officer on the basis that any claim for outstanding holiday pay should have been referred to the WRC under the Organisation of Working Time Act 1997.

Section 1 of the Payment of Wages Act provides for the following definition of “wages”:

                “wages”, in relation to an employee, means any sums payable to the employee by the employer in connection with his employment, including—

(a) any fee, bonus or commission, or any holiday, sick or maternity pay, or any other emolument, referable to his employment, whether payable under his contract of employment or otherwise, and

(b) any sum payable to the employee upon the termination by the employer of his contract of employment without his having given to the employee the appropriate prior notice of the termination, being a sum paid in lieu of the giving of such notice.”

It is clear that the definition of “wages” in Section 1 of the Act includes any holiday pay or other emolument which is payable to an employee in connection with his employment. I am satisfied that the claim in respect of outstanding holiday pay and time in lieu for additional days worked in the within claim falls within the definition of “wages” for the purpose of Section 1 of the Act. Accordingly, I find that I have jurisdiction to inquire into the complaint under the Payment of Wages Act 1991.

The issue for decision in relation to this element of the Complainant’s claim is whether the Respondent made an unlawful deduction from his wages contrary to Section 5 of the Payment of Wages Act 1991 in relation to outstanding holiday pay and time in lieu for additional days worked entitlements on the termination of his employment. In considering this issue, I must first decide whether the claimed unlawful deductions were in fact “properly payable” to the Complainant within the meaning of Section 5 of the Act.

Section 5(1) of the Act provides: -

“(1) An employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless— (a) the deduction (or payment) is required or authorised to be made by virtue of any statute or any instrument made under statute,

(b) the deduction (or payment) is required or authorised to be made by virtue of a term of the employee’s contract of employment included in the contract before, and in force at the time of, the deduction or payment, or

(c) in the case of a deduction, the employee has given his prior consent in writing to it.”

Section 5(6) of the Act provides: —

(a) the total amount of any wages that are paid on any occasion by an employer to an employee is less than the total amount of wages that is properly payable by him to the employee on that occasion (after making any deductions therefrom that fall to be made and are in accordance with this Act), or

(b) none of the wages that are properly payable to an employee by an employer on any occasion (after making any such deductions as aforesaid) are paid to the employee,

then, except in so far as the deficiency or non-payment is attributable to an error of computation, the amount of the deficiency or non-payment shall be treated as a deduction made by the employer from the wages of the employee on the occasion.

The Complainant referred his complaint to the Workplace Relations Commission on 1 February, 2017. By application of the time limit provided for at Section 41(6) of the Workplace Relations Act 2015 the cognisable period for the purpose of this claim is confined to the six-month period ending on the date on which the complaint was presented to the WRC. Therefore, the cognisable period covered by the complaint is the six-month period from 2 August, 2016 to 1 February, 2017.

I will firstly consider the annual leave entitlements which the Complainant had accrued during the cognisable period. Section 2(1) of the Organisation of Working Time Act 1997 defines the Leave Year as “a year beginning on any first day of April”. Therefore, in the context of the within claim, I am satisfied that I only have jurisdiction to consider any outstanding annual leave accrued during the annual leave year 2016/2017 (i.e. 1 April, 2016 to 31 March, 2017). I am satisfied that the Complainant had accrued an annual leave entitlement of 8 days for the period from 1 April, 2016 until 9 September, 2016 when his employment was terminated (being calculated on the basis of one third of a working week for each calendar month worked). The Respondent adduced evidence that the Complainant had carried over 10.8 days annual leave into the annual leave year 2016/2017. I am therefore satisfied that the Complainant’s annual leave entitlement for the leave year 2016/2017 was 18.8 days.

It was not in dispute that the Complainant was on a period of paid suspension from 25 May, 2016 until 31 August, 2016 for the duration of the disciplinary process (which has already been detailed above). However, having regard to the evidence adduced, I am satisfied that the Complainant had taken 15 days annual leave during this period of paid suspension in the annual leave year 2016/17 which had been approved by the Respondent. I therefore find that the Complainant had an outstanding annual leave entitlement of 3.8 days on the termination of his employment on 9 September, 2016.

I also note the Complainant’s uncontested evidence that he had accrued 5.0 additional days annual leave in lieu of time worked during April, 2016 in order to prepare financial statements for an audit. I am satisfied that payment in relation to these days qualify as wages “properly payable” within the meaning of Section 5(6) of the Act on the termination of his employment. Having regard to the foregoing, I find that the Complainant had a composite entitlement to 8.8 day’s pay in relation to outstanding annual leave/time off in lieu on the termination of employment. It was not in dispute that the Complainant was paid for 7.16 days annual leave following the termination of his employment. In the circumstances, I find that the Complainant was entitled to payment in respect of 1.64 days (being the equivalent of €216.40 net pay) annual leave/time off in lieu on the termination of his employment.

Having regard to the foregoing, I find that the Respondent made an unlawful deduction in the amount of €216.40 from the Complainant’s wages contrary to Section 5 of the Act. Accordingly, I find that the complaint is well founded.

CA-00014812-001 – Complaint under the Unfair Dismissals Acts

The Complainant referred a second complaint under the Unfair Dismissals Acts to the WRC on 3 October, 2017. The time limits which govern the referral of a claim for redress under the Unfair Dismissals Act are subject to the provisions of Sections 41(6) and (8) of the Workplace Relations Act 2015.

Section 41(6) and (8) of the Workplace Relations Act provide as follows:

“(6) Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.

(7) …

(8) An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.”

Having regard to my findings above that the Complainant’s employment with the Respondent terminated by way of resignation on 9 September, 2016, I am satisfied that the within complaint was not referred to the WRC within the time limits provided for in Section 41 of the Workplace Relations Act 2015. Accordingly, I find that I do not have jurisdiction to inquire into this complaint.

CA-00008066-001 – Complaint under the Protected Disclosures Act 2014

I find that the Complainant did not make protected disclosures within the meaning of Section 5 of the Protected Disclosures Act 2014. Accordingly, I find that the complaint made pursuant to the Protected Disclosures Act is not well founded.

CA-00008066-002 – Complaint under the Unfair Dismissals Acts

I find that the Complainant was not dismissed from his employment within the meaning of Section 1 of the Unfair Dismissals Acts and that he left his employment of his own volition with effect from 9 September, 2016. Accordingly, I find that the complaint under the Unfair Dismissals Act, 1977 is not well founded and must fail.

CA-00009499-001 – Complaint under the Minimum Notice and Terms of Employment Act 1973

I find that the Complainant resigned from his employment of his own volition and therefore, was not entitled to statutory notice under the Act. Accordingly, I find that the complaint under the Minimum Notice and Terms of Employment Act 1973 is well not founded.

CA-00009499-002 – Complaint under the Payment of Wages Act 1991

I find that the Respondent made an unlawful deduction from the Complainant’s wages contrary to Section 5 of the Payment of Wages Act 1991, and accordingly, that the claim is well founded. I hereby direct that the Respondent pay the Complainant the sum of €216.40 being the net amount of the unlawful deduction.

CA-00014812-001 – Complaint under the Unfair Dismissals Acts

I find that the within complaint was not referred to the WRC within the time limits provided for in Section 41 of the Workplace Relations Act 2015. Accordingly, I find that I do not have jurisdiction to inquire into this complaint.

Key Words:  Protected Disclosures Act 2014 – Section 5 – Relevant Wrongdoing – Complaint not well founded – Unfair Dismissals Acts – Disciplinary Procedures – Gross Misconduct - Resignation – Minimum Notice and Terms of Employment Act 1973 – No entitlement to statutory notice – Payment of Wages Act 1991 – Section 1 – Definition of Wages - Unpaid holiday entitlements