ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00008476
Parties:
| Complainant | Respondent |
Anonymised Parties | Chief Executive Officer | Credit Union |
Representatives | Connolly Moran & Ryan Solicitors | Byrne Wallace |
Complaints:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00011262-001 | 11/05/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00011355-001 | 16/05/2017 |
Date of Adjudication Hearing: 16/01/2018 and 3rd July 2018.
Workplace Relations Commission Adjudication Officer: Rosaleen Glackin
Procedure:
In accordance with Section 41 of the Workplace Relations Act, and Section 8 of the Unfair Dismissals Acts, 1977 - 2015, andfollowing the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
Background:
The Complainant was employed as Chief Executive Officer with the Respondent from 10th August 2016 until the employment was terminated with three months pay in lieu of notice on 17th November 2016. The Complainant was paid €9166 gross per month and he worked 35 hours a week. He was provided with a written statement of his terms and conditions of employment. The Complainant referred a complaint to the Workplace Relations Commission on 11th May 2017 under the Payment of Wages Act, 1991 – 2015 claiming payment of 6.25 days annual leave due and not paid on termination of the employment and a further complaint under the Unfair Dismissals Act, 1977 – 2015 alleged he had been unfairly dismissed by reason of having made a protected disclosure. The Complainant was legally represented at the Hearing on 16th January 2018 and by a different Solicitor and Barrister on 3rd July 2018. |
Summary of Complainant’s Case:
Payment of Wages Act, 1991 – 2015. The Complainant in his complaint form to the WRC claimed breach of the Act in that he had not been paid his accrued annual leave of 6.25 days due on termination of the employment. The Complainant was invited to make his submission to the Hearing but did not do so as he stated he had no calculations with him and he did not make a submission in relation to this complaint. This was at the Hearing on 16th January 2018. The Complainant submitted correspondence post this Hearing dated 5th February 2018. This was forwarded to the Respondent by the Administration Unit at my request and the Respondent confirmed they had received this. I requested a further Hearing should be scheduled and this was scheduled for 3rd July 2018 in relation to the complaint under the Payment of Wages Act and also the Unfair Dismissals Act. In this correspondence of 5th February 2018 the Complainant is claiming he had not been paid for 5.85 days accrued annual leave due and not paid on termination of the employment. The Complainant accepted at the Hearing on 3rd July 2018 that he had been paid 5.5 days annual leave. |
Summary of Respondent’s Case:
Payment of Wages Act, 1991 – 2015. The Respondent provided evidence to the Hearing that the Complainant had been paid all his accrued annual leave of €2,326.92 gross in his payslip dated 24th November 2016. |
PRELIMINARY ISSUE – UNFAIR DISMISSAL – PROTECTED DISCLOSURE.
The Complainant in their written submission to the Hearings in January and July 2018 stated that he had made a number of protected disclosures to both the Chairman and the Board of the Respondent, the Risk and Compliance Officer between August 2016 and the date of termination of his employment on 17th November 2016. These disclosures were submitted in August 2016 – 18th October 2016 and on other unspecified dates. These related to – material misstatement of financial affairs – failure to have in place appropriate or adequate risk management process - non-compliance with anti-money laundering obligations – organisational structure. Both Parties confirmed at the Hearing that the Complainant did not make any written protected disclosures to the Board or to the Chairman.
I have examined in detail the minutes of the Board Meetings of September 2016 – October 2016 and November 2016. The Complainant as CEO made a report to each Board Meeting. These minutes verify that the Complainant in his role as Chief Executive Officer made no protected disclosure at any of these meetings.
I further note that the Complainant brought proceedings before the Circuit Court in December 2016 in which Notice of Motion he states he had made protected disclosures. However in his affidavit to the Court he states that he made these disclosures on 14th and 15th November 2016 and this also confirms that he had also made a complaint to the Central Bank in relation to the same issues on 20th November 2016. I note that the Complainant in a further affidavit dated 31st January 2017 withdrew his application before the Circuit Court.
I note that following the Complainant’s complaint to the Central Bank of 20th November 2016 the Complainant was interviewed by the Bank but no action was required on the part of the Respondent.
The Complainant was employed from 10th August 2016 to 17th November 2016. He sought protection under Section 6(2)(ba) of the Act which provides as follows - “(2) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal if it results wholly or mainly from one or more of the following: - (ba) the employee having made a protected disclosure”. It was the Complainant’s assertion that he had made protected disclosures, although his evidence of the dates this was done made by way of submission to the Adjudication Hearing on 16th January 2018 and 3rd July 2018 differed from the sworn affidavit he made to the Circuit Court on 2nd December 2016. However there was no evidence presented to me at the Hearing of 16th January 2018 and again on 3rd July 2018 in relation to any protected disclosures made by the Complainant to the named Respondent.
Preliminary Issue – Section 5(5) of the Protected Disclosures Act, 2014.
Section 5(5) of the Protected Disclosures Act, 2014 is very relevant to this complaint. This provides as follows – “ A matter is not 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 anact or omission on the part of the employer”. The Complainant was employed as Chief Executive Officer by the Respondent and as such it was his responsibility to bring any wrongdoing to the attention of the Board of the Credit Unit and also the Central Bank but he did not make any complaint to the Central Bank until 20th November 2016 after the termination of his employment on 17th November 2016 and he lodged a complaint with the Circuit Court on 20th November 2016 but this was withdrawn by the Complainant on 31st January 2017.
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
Payment of Wages Act, 1991 – 2015. CA-00011355-001.
On the basis of the evidence and my findings above and in accordance with Section 41(5) of the Workplace Relations Act, 2015 I declare this complaint is not well founded.
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
Unfair Dismissals Act, 1977 – 2015 CA-00011262-001
On the basis of the evidence and the Preliminary Issues above and in accordance with Section 8 (1)(c) of the Act I declare the complaint is not well founded as the Complainant has failed to show any evidence he had made a protected disclosure.
Dated: September 18th 2018
Workplace Relations Commission Adjudication Officer: Rosaleen Glackin
Key Words:
Payment of Wages – Accrued annual leave. – evidence was it was paid Unfair Dismissal – Protected Disclosure – Section 6 (2)(ba) of the Act – no evidence of protected disclosure. |