PDD193

This is an appeal of a decision by Mr. O’Driscoll, 'the Complainant', of a decision by an Adjudication Officer under the Protected Disclosures Act 2014, ‘the Act’.

The Complainant was employed by the Respondent Company from 1972 to 2010 when he was made redundant. He held the role of Group Financial Controller at the time of his departure. Prior to his departure, he entered into a compromise agreement with the Society, 'the Respondent'. This agreement contained a clause regarding information to which the Complainant had access in the Respondent company, which read as follows;

‘The Employee further undertakes and agrees that he will not at any time disclose such confidential information to anyone else or to utilise it for his own benefit or for the benefit of others without the prior written consent of a duly authorised officer of the Society’

In 2011 and 2012 the Complainant sought permission from the Respondent to report certain concerns he had regarding the running of the business to An Garda Síochána. He said that it was his belief that he was required to do so under the Criminal Justice Act 2011 but that the terms of his compromise agreement prevented him from doing so.

There followed some considerable exchange of correspondence between the Complainant and the Respondent on this and other matters raised by the Complainant.

The Complainant wrote to the Respondent following the enactment of the Protected Disclosures Act 2014, stating that he was making a protected disclosure regarding the matters that he had raised in 2011 and 2012. The Respondent’s Solicitors replied on 25 November 2016 and subsequent correspondence ensued.

The Complainant referred a case to the Workplace Relations Commission in September 2017 stating that the letter from the Respondent’s Solicitors of 25 November 2017 and subsequent related letters of 10 March 2017, 10 April 2017 and 23 May 2017 amounted to penalisation contrary to s.12 of the Act.

The Adjudication Officer found against the Complainant on the grounds that he had not made a protected disclosure within the meaning of s.5 of the Act.

The Complainant appealed this decision.

Complainant’s arguments

1. The Complainant is entitled to make a protected disclosure in respect of a matter that precedes the enactment of the Protected Disclosures Act.

2. The Complainant is an ‘employee’ within the meaning of s.3 of the Act.

3. The disclosure made by the Complainant is a protected disclosure within the meaning of the Act.

4. The Complainant had been penalised for making the protected disclosure.

5. The Complainant raised his claim under the Act within 6 months of the last act of penalisation, as required by the Act.

6. The Complainant requested, in the event that the court found for him, that, ‘inter alia’ ,the Court require the Respondent to guarantee that his family or himself will not be subject to any reprisal for making this protected disclosure to the Board of Directors of Ornua Ltd., to the Minister for Agriculture, Food and Marine, to the Director-General of the European Anti-Fraud Office, to the European Commission and to the Comptroller and Auditor General.

Respondent’s arguments

1. The Complainant does not have 'locus standi'. While the Act applies to disclosures prior to the effective date of enactment in 2014, it does so only in respect of persons who were in employment on or after the effective date. The Complainant’s employment by the Respondent ceased almost four years prior to the effective date.

2. In July 2010 the parties entered an agreement on a severance package for the Complainant and he accepted this as full and final settlement of all claims against the Respondent. Therefore, it is not open to him to bring this or any other claim against the Respondent.

3. The Complainant did not make a protected disclosure within the meaning of the Act and the Adjudication Officer was correct in finding that this was the case.

4. Without prejudice to the foregoing, the Complainant has not been penalised in any way within the meaning of the Act, or otherwise.

5. The Court has no power to grant a remedy in respect of future actions as the Act applies only to disclosures that have been made and not to disclosures in the future

6. The Respondent refutes entirely all allegations made by the Complainant.

Summary of Issues for the Court

In light of the submissions of the parties, the Court considered that there were three questions raised that could require determination by the Court. They were

i) Does the Claimant have ‘locus standi’? If so;

ii) Did the Claimant make a protected disclosure under the terms of the Act? If so;

iii) Did penalisation occur?

The Law

Sections 3 and 5 of the Act read as follows:

3. (1) In this Act—

“contract of employment” means contract of service or apprenticeship, whether express or implied, and (if express) whether oral or in writing;

“disclosure”, in a case in which information disclosed is information of which the person receiving the information is already aware, means bringing to the person’s attention;

“educational establishment” means any university, college, school or other educational establishment;

“employee” has the meaning given by section 1 of the Unfair Dismissals Act 1977 and includes an individual who is deemed to be an employee by virtue of subsection (2) (a);

“employer”, in relation to a worker, means, subject to subsection (2) (c)—

(a) in the case of an individual who is a worker by virtue of paragraph(a) of the definition of that term, the person with whom the worker entered into, or for whom the worker works or worked under, the contract of employment,

(b) in the case of an individual who is a worker by virtue of paragraph (b) of the definition of that term, the person with whom the worker entered into, or works or worked under, the contract,

(c) in the case of an individual who is a worker by virtue of paragraph (c) of the definition of that term—

(i) the person for whom the worker works or worked, or

(ii) the person by whom the individual is or was introduced or supplied to do the work,

or

(d) in the case of an individual who is a worker by virtue of paragraph (d) of the definition of that term, the person who provides or provided the work experience or training;

“Minister” means the Minister for Public Expenditure and Reform;

“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;

“protected disclosure” shall be construed in accordance with section 5 ;

“public body” means—

(a) a Department of State,

(b) a local authority within the meaning of the Local Government Act 2001 ,

(c) any other entity established by or under any enactment (other than the Companies Acts), statutory instrument or charter or any scheme administered by a Minister of the Government,

(d) a company (within the meaning of the Companies Acts) a majority of the shares in which are held by or on behalf of a Minister of the Government,

(e) a subsidiary (within the meaning of the Companies Acts) of such a company,

(f) an entity established or appointed by the Government or a Minister of the Government,

(g) any entity (other than one within paragraph (e)) that is directly or indirectly controlled by an entity within any of paragraphs (b) to (f),

(h) an entity on which any functions are conferred by or under any enactment (other than the Companies Acts), statutory instrument or charter, or

(i) an institution of higher education (within the meaning of the Higher Education Authority Act 1971 ) in receipt of public funding;

“relevant information” shall be construed in accordance with section 5 (2);

“relevant wrongdoing” shall be construed in accordance with subsections (3) to (5) of section 5 ;

“trade union official” means an official of a trade union licensed under the Trade Union Acts 1871 to 1990;

“worker” means an individual who—

(a) is an employee,

(b) entered into or works or worked under any other contract, whether express or implied and (if it is express) whether oral or in writing, whereby the individual undertook to do or perform (whether personally or otherwise) any work or services for another party to the contract for the purposes of that party’s business,

(c) works or worked for a person in circumstances in which—

(i) the individual is introduced or supplied to do the work by a third person, and

(ii) the terms on which the individual is engaged to do the work are or were in practice substantially determined not by the individual but by the person for whom the individual works or worked, by the third person or by both of them,

or

(d) is or was provided with work experience pursuant to a training course or programme or with training for employment (or with both) otherwise than—

(i) under a contract of employment, or

(ii) by an educational establishment on a course provided by the establishment, and includes an individual who is deemed to be a worker by virtue of subsection (2) (b) and any reference to a worker being employed or to employment shall be construed accordingly.

(2) For the purposes of this Act—

(a) an individual who is or was—

(i) a member of the Garda Síochána, or

(ii) a civil servant (within the meaning of the Civil Service Regulation Act 1956 ),

is deemed to be an employee,

(b) an individual who is or was a member of the Permanent Defence Force (within the meaning of the Defence Act 1954 ) or the Reserve Defence Force (within the meaning of that Act) is deemed to be a worker,

(c) “employer”—

(i) in relation to a member of the Garda Síochána (other than the Commissioner of the Garda Síochána), means the Commissioner of the Garda Síochána;

(ii) in relation to a civil servant (within the meaning aforesaid), has the meaning given by section 2A(2) of the Unfair Dismissals Act 1977 ;

(iii) in relation to a member of the Permanent Defence Force or the Reserve Defence Force (both within the meaning aforesaid), means the Minister for Defence.

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

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

(8) In proceedings involving an issue as to whether a disclosure is a protected disclosure it shall be presumed, until the contrary is proved, that it is.

Deliberation of the Court

In relation to the issue of 'locus standi', the Respondent raised 2 issues, as follows:

1) The existence of a compromise agreement between the parties and

2) At the time of the alleged penalisation, the Complainant was not employed by the Respondent.

The Court will not look behind the compromise agreement once it is satisfied that the employee gave his full and informed consent to waive his employment rights. The agreement lists the various Acts concerned. However, this agreement was entered into in 2010 when the 2014 Act was, manifestly, not within the contemplation of either party.

The Act applies to an employee within the meaning of s.3(1), which says that the definition of ‘employee’ is the same as that given under s.1 of the Unfair Dismissals Act 1977. This section defines an employee as:

‘an individual who has entered into or works under, (or where employment has ceased worked under), a contract of employment’.

The next issue is whether the disclosure made amounts to a protected disclosure within s.5 of the Act. This section provides that a disclosure is a protected disclosure where it is a disclosure of relevant information by a worker. Such disclosure can be either before or after the enactment of the Act.

‘Relevant information’ is defined at s.5(2) of the Act and it requires ‘inter alia’ that there must be a reasonable belief on the part of the worker that it shows one or more relevant wrongdoings. The issues raised need not be correct ultimately nor is the motivation of the person raising them of any relevance. The only requirement is that the person making a disclosure should have a reasonable belief as to the veracity of the facts as he or she understands them.

The difficulty in this case is that the Complainant in a letter to the Respondent’s solicitors, dated 13 January 2017, stated as follows;

‘For the purpose of clarification and avoidance of doubt I am making no allegation of wrong doing by any person or body corporate’.

In the view of the Court, this is fatal to the Complainant’s assertion that he made a protected disclosure.

The very purpose of the Act is to provide protections to people who make disclosures of wrongdoing. If there is no disclosure of wrongdoing, a statement or disclosure is not ‘relevant information’ in accordance with the definition set out in s. 5 (2) (a) and cannot be regarded as a protected disclosure within the meaning of the section.

Therefore, the Court finds that there was no protected disclosure. Accordingly, it is not necessary to consider if penalisation occurred contrary to the provisions of the Act.

Determination

The decision of the Adjudication Officer is upheld.

Signed on behalf of the Labour Court



Tom Geraghty
CC______________________
10 April 2019Deputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Ceola Cronin, Court Secretary.