UDD1917

Background

The Complainant commenced employment with the Respondent on 21st October 2000 and his net rate of pay was €420 per week. The Complaint left the Respondent’s employment on the 2nd of June 2015 on foot of a compromise agreement to return to Hungary and to look at employment opportunities in the Netherlands. In early July 2015 the Complaint contacted the respondent advising that his plans had not worked out and enquiring as to whether or not there was any work available. The Complainant returned to work for the Respondent on the 6th July 2015 on a fixed term contract. The nature of that contract is disputed by the Complainant who is asserting that he returned to his original contract and that for the purpose of the Act his service should be considered to be unbroken. This is disputed by the Respondent. The Complainant is also alleging he made a protected disclosure on the 15th September 2015 therefore the requirement to have one year’s continuous service does not apply to him.

The Respondent disputes that a protected disclosure was made on the 15th September 2015 or at all.

Preliminary issue
In the first instance the Court must establish whether in accordance with the requirements of the Act the Complainant has one year’s continuous service. Should the Court find that the Complainant’s service was continuous then it will hear the complaint in its entirety. Should the Court find that the Complainant does not have one year’s continuous service with the Respondent the Court will consider whether he can avail of Sections 2 and s6(2) (ba) of the Act.

Complainant’s case
The Complainant does not dispute that he left the Respondent’s employment on the 2nd of June 2015 and that a payment was made to him at that stage. In his evidence to the Court the Complainant stated that it was his understanding that the ‘door was open’ if he wanted to return to the factory. It was his evidence that if he did not get ‘the start again’ he would have gotten another job. He confirmed in his evidence to the Court that he knew he was giving up his job when he resigned on the 2nd of June 2015 and took the payment.


He also confirmed that he received his Christmas savings back and a reference. It was his evidence that when he returned to Ireland he rang Mr Tony Delaney who is the HR manager for the Respondent from the airport to see if there was any work available and he was told he should drop into the office.

The next day he called to the office and explained that his plans had not worked out and that he had returned as he missed his children. Mr Delaney told him to come back on Friday. When he came back on Friday he met with Mr Delaney and Mr Dunne. It was his evidence that he was told that they were short of staff to do ‘back scoring’ and that he could start on Monday. It was his evidence that he was not given a contract and was not told that it was only for twelve weeks. It was his evidence that he was put back on his old rate of pay and he assumed that he was back permanently. In evidence he maintained that he did not sign the new contract.

Respondent’s case
It is the Respondent’s case that the Complainant did not have 12 months service at the time of dismissal and therefore does not have standing under the Act.


It is the Respondent’s position that the Complainant voluntarily resigned his position on the 2nd June 2015. At that time the Complainant queried if a settlement could be reached in relation to an injury he had prior to his leaving Ireland. Following some discussion over a period of days agreement was reached that the Respondent would make a payment of €4,500 in full and final settlement of all claims. The Complainant had ample opportunity to discuss the settlement with his legal advisors and or his Union Representative who was on site. The Complainant signed the agreement which contained a clause whereby the Complainant confirmed that the contents and implications of the agreement had been explained to him and that he had executed the agreement in full knowledge and understanding of its effect.

Mr Delaney Human Resources Manager for the Respondent in his evidence to the Court advised that he went through the settlement agreement with the Complainant prior to the Complainant signing it. It was his evidence to the Court that the Complainant advised him of his intention to move to the Netherlands and that the Complainant told him he had sold his vehicle and terminated his agreement in relation to his rental accommodation. It was his evidence that the Complainant had requested a reference from him which he provided. Mr Delaney confirmed that the Complainant contacted him about three weeks later to say things had not worked out as he could not find work.
It was Mr Delaney’s evidence that he told the Complainant to drop into the factory when he got back. The Complainant called in and was advised there was a shortage on the kill- line and was offered a12 week contract. He advised Mr Delaney of his new address and completed a re-engaged form. He started work the following Monday 6th July 2015.



The Law
The Minimum Notice and Terms of Employment Act First Schedule provides the definition of continuous service for the purpose of the Unfair Dismissals Act 1977 as follows:

Continuity of Service

1. The service of an employee in his employment shall be deemed to be
continuous unless that service is terminated by—
( a) the dismissal of the employee by his employer, or
( b) the employee voluntarily leaving his employment


Based on the submissions received and the evidence given including the Complainant’s own evidence the Court finds the Complainant voluntarily left the Respondent’s employment on the 2nd June 2015 and therefore his claim does not meet the one-year requirement set out in the Act. The second element of the Complainant’s claim relates to a protected disclosure. Which requires the Court to consider whether he can avail of Sections 2 and s6(2) (ba) of the Act.

Complainant’s case
It is the Complainant’s case that when he returned to work he advised his supervisor that he did not want to do the back- scoring job as it caused him a lot of pain. It is the Complainant’s case that on the 15th September 2015“the pain had reached such a degree that I repeated my concerns to Mr Dunne (supervisor) that I was in a lot of pain due to the work that I had to perform, and could I move to another job”it is the Complainant’s case that this was a protected disclosure. It is the Complainant’s case that he made the same disclosure later on that day to Mr O’ Connor the Works Health and Safety Manager and also to Mr Delaney HR manager. It is the Complainant’s case that this was a protected disclosure in line with section 5(3) (d) of the Protected Disclosures Act 2014 (the 2014 Act) in that it was a disclosure of relevant information about a relevant wrongdoing.
In this case it is the Complainant’s submission that the relevant wrongdoing falls within Section 5(3)(d) in that the health and safety of the Complainant was endangered.

Respondent’s case
It is the Respondent’s case that by virtue of section 5(3)(b) of the Act which defines a relevant wrongdoing as;
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.

It is the Respondent’s position that the request by the Complainant to be moved because he was in pain is an issue that arises under the worker’s contract of employment and at best is a Health and Safety issue and cannot by virtue of section 5(3)(b) be a protected disclosure under the 2014 Act. The Respondent also argues that in fact the issue raised by the Complainant is a grievance.
The difference between a grievance and a protected disclosure was addressed by SI 464/2015 Code of Practise on Protected Disclosures Act 2014. It is the Respondent’s position that the nature of the communication made by the Complainant solely relates to a matter that was specific to the Complainant and as such should be properly classified as a grievance.


The law

Protected disclosures
5. (1) For the purposes of this Act “protected disclosure” means, subject to
subsections (6) and (7A) andsections 17and18, 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 section6,7,8,9or10.
(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.


SI 464/2015 Code of Practise on Protected Disclosures Act 2014.
The Code of practice sets out the difference between a grievance and a protected disclosure at section 30 and 31 as follows;

30. A grievance is a matter specific to the worker i.e. that worker’s employment position around his/her duties, terms and conditions of employment, working procedures or working conditions.
A grievance should be processed under the organisation’s Grievance Procedure. A protected disclosure is where a worker has information about a relevant wrongdoing.

31. It is important that a worker understands the distinction between a protected disclosure and a grievance. The organisation's Whistleblowing Policy should make this distinction clear.

Discussion and decision
The issue for the Court to consider is whether the communication made by the Complainant was a protected disclosure or a grievance. For the purpose of the Act a protected disclosure is a disclosure of relevant information which the Worker reasonably believes shows one or more relevant wrongdoing. In this case the communication by the worker related to the fact that he wanted to change roles as he was in pain.
The communication did not disclose any wrongdoing on the part of the Respondent.
It appears to the Court therefore that the Complainant’s communication was in fact an expression of a grievance and not a protected disclosure. In those circumstances the Complainant cannot rely on the exception to one year’s continuous service set out in section 2 and s6 (2) (ba) of the Act and therefore his claim does not fall within the scope of the Act.

Determination
For the reasons set out above the Court Determines that the Complainant does not have the requisite service to pursue his complaint of unfair dismissal and therefore his complaint must fail. The Court also determines that the communication by the Complainant was not a protected disclosure and therefore his claim that his dismissal was for having made a protected disclosure must also fail.
The Decision of the Adjudication Officer is upheld.
The Court so Determines.



Signed on behalf of the Labour Court



Louise O'Donnell
CR______________________
08.04.2019Deputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Ciaran Roche, Court Secretary.