Complainant

Respondent

Anonymised Parties

A General Manager

A Golf Club

Representatives

Solicitors

Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00022336-001

03/10/2018

The issues in contention concern the alleged Unfair Dismissal of a Golf Club Manager by a Golf Club. The Complainant alleged that he had made a Protected Disclosure and therefore had grounds to bring his case under the UD Act, 1977 even though he did not have 12 months service.

The Complainant provided a written and an oral submission. Club management meeting minutes were included.

The Complainant commenced employment on the 6th June 2017 and was dismissed on the 21st May 2018 -the last day of employment being the 28th May.  

During the Complainant’s employment matters proceeded without incident until early 2018 when differences arose over a variety of topics concerning Administration, Commercial/Marketing matters, the Club catering arrangements and Health & Safety Infrastructure issues with the Club premises.

It was acknowledged that the Club Management held two offsite meetings in a local pub on the 7th May and the 14th May at which the decision to dismiss the Complainant was taken. These meetings took place without any effort to seek his input or afford him a chance to give his version of events. They were completely at variance both with Natural Justice and all recognised legal precedents in the area of dismissal law.

Furthermore, the Complainant maintained that he made a Protected Disclosure on the 18th of May 2018, as defined by the Protected Disclosures Act 2014 concerning Club Legal Obligations and Health & Safety Obligations.

He maintained that these disclosures were a key motivating factor in the Respondent decision to dismiss him on the 21st May 2018.

As such the making of the Protected Disclosure brought him within the ambit of Section 6(2)(b)(a) of the Unfair Dismissal Act and entitles his claim to be considered even though he does not have a full twelve months employment.

A written and on oral submission were made by the Respondent. Club Management Meeting minutes were also included in the written evidence.

The Respondent strongly contested the Time Limits issue -the Complainant did not have twelve months employment service when he was dismissed.

The claim that he made a Protected Disclosure was / had no substance as the matters in the alleged Protected Disclosure were clearly within his ordinary job remit and notwithstanding this the alleged Protected Disclosure was made on the 18th May when it was common cause that the Dismissal decision had preceded this date.

The actual communication of the decision until the 21st May was delayed as the Complaint was on a period of sick leave.

In summary the Complainant has not got the required employment Service for a claim under the UD Act,1977 and no question of a Protected Disclosure, as defined in the Protected Disclosures Act, 2014 arises.

3:1       Relevant Law

The relevant law is in the Unfair Dismissal Act, 1977 & SI 146 of 2000 – Code of Practice on Grievance and Disciplinary Procedures; Protected Disclosures Act, 2014 together with the accepted rules of Natural Justice and the many Legal Precedents in the area of Dismissal law.

3:2       The key issue in this case is whether or not a Protected Disclosure took place such as to entitle the Complainant to avail of Section 6:2 (b)(a) of the Unfair Dismissals Act,1977 -quoted below.

Unfair dismissal.

6

6.— (1) Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.

(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,

The definition of what is a Protected Disclosure must rely on what is set out in the Protected Disclosures Act, 2014.

Section 5 of the Protected Disclosures Act, 2004 is quoted below.

 Protected Disclosures

5.         

Protected disclosures

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.

The Complainant in the “Protected Disclosure” section of his letter of the 18th May 2018 referred to three issues namely Electrical testing, Legionella testing and Fire Safety concerns. The letter states that all the issues were referenced to in e mails sent to the Club Officers as far back as January 2018. There was nothing new in the letter as far as the Respondent was concerned.

The Complainant’s Contract of Employment was submitted in evidence. Section 2 of same refers to

“The main duties of this position are the day to day management of all aspects of the club’s business, including office administration, club finances, and food and beverage.”

Referencing Section 5 (5) above

(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.

it is only reasonable for me to infer that the issues in the alleged Protected Disclosure fall within the normal duties of a Club General Manager. Common cause and experience would have it that Premises and or Infrastructure issues are the normal remit of a General Manager.

The Complainant may have been dissatisfied regarding the Respondent’s approach in response to his e mails etc. but this does not make the process one of Protected Disclosures.

Having reviewed all the evidence both Oral and Written I did not accept that a “Protected Disclosure” as defined by Section 5 of the Protected Disclosure Act, 2004 quoted above had taken place.

It follows therefore that the protections of the Unfair Dismissal Act, 1977 as set out in Section 6(2) (ba) of that Act do not apply to the Complainant. In plain English the Complainant does not have the required employment service (12 months) to qualify under the Act.

Accordingly, the claim must be dismissed. 

I would also refer, as precedent, to an earlier Adjudication ADJ-0001930 where a similar finding regarding a Protected Disclosure and time limits under the Unfair Dismissals Act,1977 was made on roughly comparable grounds.

Act

Complaint/Dispute Reference No.

Summary Decision /Please refer to Section Three above for detailed reasoning.

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

CA-00022336-001

Claim for Unfair Dismissal is not well founded and is dismissed.