Complainant

Respondent

Anonymised Parties

An Employee

A Limited Company

Representatives

Alice Duffy Matheson

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Schedule 2 of the Protected Disclosures Act, 2014

CA-00016922-001

18/01/2018

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

CA-00017462-001

12/02/2018

The Respondent is a privately owned company incorporated in Ireland and is authorised and regulated by the Central Bank of Ireland as an Investment Business Firm under Section 10 of the Investment Intermediaries Act, 1995 (as amended).

By complaint forms dated 18 January 2018 and 12 February 2018, I submitted a complaint to the Workplace Relations Commission (hereafter referred to as: ‘the WRC’).

The following matters are before the Adjudicator of the WRC for determination in the above-entitled proceedings:

(a)          My complaint pursuant to section 8 of the Unfair Dismissal Act, 1977;

(b)          My complaint pursuant to schedule 2 of the Protected Disclosures Act, 2014.

I am seeking redress in the form of compensation.

FACTUAL BACKGROUND:

I commenced employment with the Respondent Company on 7 March 2016 on a full-time basis as a Compliance Officer / Manger with responsibility for Compliance Monitoring. My role was created following a Central Bank of Ireland review of the Respondents activities during 2015.Following this review the Respondent was required to implement a number of workstreams emanating from the risk mitigation program issued by the Central Bank of Ireland. In order to demonstrate effective oversight of the Respondent activities, the Respondent was required to appoint an individual to monitor activities including verification of how policies and procedures were implemented across the Respondents Irish operations.

The Respondent furnished me with a Contract of Employment dated 24 February 2016. The Contract of Employment provided that I would be placed on a probationary period, which would not exceed six months. My probationary period expired on the 15 September 2016 and my permanent appointment was confirmed following a probationary review meeting. My Contract of Employment also stated that “You will be eligible for a discretionary bonus at the end of each calendar year which will be based on your performance at the Company”

My role was a “Controlled Function” role under the Central Bank Reform Act 2010 and was, therefore, subject to the Fitness and Probity standards prescribed by the Central Bank of Ireland. These standards required me to be competent and capable, honest, ethical, to act with integrity and be financially sound. Under section 21 of the 2010 Act, this obligation must be adhered to on an on-going basis. Prior to the commencement of my employment with the Respondent I had to submit a Fitness and Probity Questionnaire. Specifically, I was required to confirm in the negative, the following;

1.11) Have you ever been untruthful or provide false or misleading information to the Central Bank of Ireland or been uncooperative in any dealings with the Central bank of Ireland, and

1.15) Have you ever, in any jurisdiction, been found by the Central bank of Ireland or any other regulatory authority to have perpetrated or participated in any negligent, deceitful or otherwise discreditable business or professional practice.

Furthermore, I was required to confirm, on an annual basis, my adherence to section 50 of the Central Bank Reform Act,2010. The Fitness and Probity Regime ensures that regulated firms and individuals who work in these firms are committed to high standards of competence, integrity and honesty, and are held to account when they fall below these standards.

My roles and responsibilities included:  

•             Assisting in the promotion of a strong and robust compliance culture;

•             Monitoring regulatory reporting requirements;

•             Conducting and assisting in in- depth consultative reviews and projects;

•             Promoting best practice by identifying the needs and best methods to improve risk       management and controls;

•                Assisting in ensuring that the activities within the respondents are carried out in a systematic orderly, correct and secure fashion.

My role represented one element of the control function within the Respondent company and the position required me to maintain a measure of independence in respect of internal compliance issues. The nature of the role required unfettered access to information and the co-operation and support from the Respondents senior management team, particularly, the co-operation and support of the Respondents CEO, Ms EB.

I commenced on a gross base annual salary of €70,000 and following a performance review in December 2016 this was increased to a gross base annual salary of €72,800.

The Respondent issued an Employee Handbook and a Whistleblowing / Protected Disclosures Policy. The Respondents Employees Handbook covered such areas as grievance procedures, performance management and it also set out the categories of employee actions that constituted gross misconduct. Actions constituting gross misconduct included serious criminal offences and deliberate falsification and irregular practice in respect of records. The Respondents Whistleblowing Policy sets out the process for making a Protected Disclosure and identifies the Head of Compliance as the point of contact for such disclosures.  

The Respondents organisational structure is such that the Respondent’s CEO, Ms EB holds two roles, she is the Respondent Company’s CEO and she is also the Senior Managing Director of Investor Services. Both roles are pre-approved control function roles and are subject to the Fitness and Probity standards prescribed by the Central Bank of Ireland. I respectfully submit that in the context of Compliance Monitoring, these dual roles caused significant conflicts of interests.  

In my role, I reported to the Respondents Head of Compliance, Ms ELB. Ms ELB held a pre-approved control function role (“PCF 15”). My worked mainly involved conducting audits of internal policy and procedures to establish adherence to those policies and procedures, drafting monitoring reviews and annual compliance monitoring plans for the approval by the Head of Compliance. The nature of my role involved a significant amount of interaction with senior members of the Respondents management team. Pursuant to engagement protocols issued by the board of directors, each department is required to cooperate with the compliance monitoring review processes, including by way of providing me with unfettered access to all documents requested by me as part of my reviews. The purpose of all of this is to ensure the Respondent’s compliance with its legal obligations to the Central Bank of Ireland.

During 2016, I encountered some challenges while attempting to complete a number of the Investor Services related monitoring reviews scheduled for 2016. These challenges were communicated to Ms ELB during the weekly Compliance Team meeting and also during my one to one meeting’s. Ms ELB acknowledged the challenges I faced from the senior management team and informed me that she had communicated these issues to the Respondent’s CEO. The lack of engagement and co-operation from the Investor Services Team had a knock-on effect on the entire 2016 Compliance Monitoring Review Plan and a decision was taken to carry these reviews into the 2017 Compliance Monitoring Plan. A total of four (4) monitoring reviews were carried over to 2017 and all were related to the Investor Services Function. During the period, 7 March 2016 to 20 December 2016, I had eleven (11) one to one meetings with Ms ELB to discuss my performance and to facilitate feedback. Ms ELB conduced both my 6-month probationary review and my 2016 Performance Review. My 2016 Performance Review resulted in a pay raise for 2017. Furthermore, Ms ELB stated in my 2016 Performance Review that I had “established a strong baseline in 2016 in one of the most challenging areas of Compliance Management”

Ms ELB resigned from the Respondent Company and left the employment of the Respondent in December 2016. Prior to Ms ELB’s departure, Ms ELB informed me on the 20 December 2016 that she had a number of concerns regarding the Respondent Company and that she was going to raise these concerns with the Central Bank of Ireland during her PCF exit interview which was scheduled for early January 2017. Ms ELB did not disclose these concerns to me. Ms ELB, following discussions with the Respondents CEO, also informed me that Mr RC, Compliance Manager, Financial Crime, would liaise between the Compliance Team and the Respondents CEO until such time as a suitable external candidate was appointed to the role of Head of Compliance. Mr RC was now responsible for overseeing the activities of the Compliance Team.

In the absence of a Head of Compliance, the Compliance Team’s activities continued. The team would meet most Mondays at 11am to discuss individual members work agenda’s, what was achieved during the previous week and what was scheduled for the week ahead. The challenges I faced from senior management particularly Investor Services continued. It was during these meeting that I would provide an update to the team on the progress of the Compliance Monitoring Plan. I also used these team meeting to communicate the problems I was encountering from senior management, the lack of co-operation, lack of engagement and the refusal to provide the necessary information to conduct the reviews. I raised these issues on thirty (30) separate occasions between January 2017 and September 2017. All issues identified during these meetings were to be communicated to the Respondent CEO by Mr RC at their weekly meeting. Minutes of all Compliance team meetings were maintained.

Shortly after Ms ELBs departure from the Respondent, it was subject to a review by the Fund Service Providers Supervision Section of the Central Bank of Ireland. This review focused on the Respondents operational procedures, board packs, risk documentation and compliance documentation including five (5) Compliance Monitoring Review Reports that I had previously conducted. The material was provided to the Central Bank of Ireland during May 2017. In addition to providing this material, an on-site inspection was to be scheduled during the second half of 2017.During such an inspection the Central Bank of Ireland have the power to interview individual staff members, and it is an offence for any individual or regulated company to provide information to the Central Bank of Ireland which it knows or ought to reasonably know to be false or misleading.

As the year progressed, I encountered significant difficulties, obstacles, challenges and a general obstructive environment from the Respondents senior management particularly from the Investor Services Function. In one instance, Mr RC had to send an email to the Investor Services Team to advise them that I was the lead on all Compliance Monitoring Reviews and that I should be included in all conversations regarding all monitoring reviews. Mr RC sent this email on the 26 January 2017.This obstructive environment eventually escalated to the point where I was refused access to information to complete a monitoring review.

By May 2017 six (6) compliance monitoring reviews were behind schedule. Mr RC was aware of these delays and the reason for these delays. Mr RC was appointed as the Respondents Head of Compliance (“PCF 15”) in June 2017, this was a pre-approved control function role and he was subject to the fitness and probity standards prescribed by the Central Bank of Ireland.

Email Setting out Concerns – 31 May 2017

I was so concerned about the state of the Compliance Team as it did not have a Head of Compliance for more than 5 months and during this period no progress was being made on getting Investor Services to engage with Compliance Monitoring which was having a significant knock on effect on the delivery of the 2017 Compliance Monitoring Plan. I had repeatedly flagged these issues this during our Monday meetings. I drafted an email to Mr RC setting on the 31 May 2017 setting out my concerns in detail and I offered to discuss these concerns with Mr RC. Shortly after I sent this email, we had a meeting to discuss the concerns raised and Mr RC was extremely annoyed about the email. We had another meeting the following day to discuss my email and he informed me that he would send an email to the Compliance Team once his appointment was confirmed by the Central Bank of Ireland. Mr RC sent an email to the Compliance Team on the 16 June 2017. In this email he acknowledged many of the concerns that I had previous raised, he set out a number of proposals to resolve the issues that I had identified, including one-to-one meetings during which individuals’ roles, areas of responsibilities and tasks would be discussed and clarified. It is fair to say that, following my email of the 31 May, the relationship between Mr RC and I became strained. It got to the point where I sought guidance from the Respondents Director of Human Resources, Ms ED. I explained my concerns to her, and she suggested that she would facilitate a sit down between both of us. I agreed, and it was arranged. Following this meeting our relationship improved.

Gifts and Hospitality Policy Review

In June 2017, I was obliged to request that my name be removed from a Compliance Monitoring Report in relation to the procedures to be followed when receiving gifts from clients namely the Gifts and Hospitality Policy a sub policy of the Conflicts of Interest Policy. This review was due to be completed during Q1 of 2017 but was delayed due to the lack of co-operation from the Respondents senior management. This report was not finalised until July 2017.During a meeting with the Respondents CEO, Ms EB, to discuss the findings of these reviews, Ms EB stated that she was not happy with the wording of these reports as it would give the Central Bank of Ireland the impression that certain members of senior management were clueless as to their understanding of the polices and their obligations. Ms EB further stated that she would rather deal with this issue via a telephone conversation with the individuals in question (Mr NB, Board Member and Senior Managing Director) as opposed to having this issue documented in a report that could be disclosed to the Central Bank of Ireland. Mr RC and Mrs ET were present at this meeting.

Immediately following this meeting, I expressed significant concerns regarding Ms EB’s position with Mr RC. I expressed significant concerns regarding the reluctance of Ms EB to permit the accurate documenting of the findings and observations resulting from the Compliance Monitoring Review. I highlighted the fact that any of the Compliance Monitoring Reports could be requested by the Central Bank of Ireland and need to be accurate. Mr RC assured me that he would not entertain Ms EB’s position and assured me that I would be involved in all discussions and decisions regarding the final wording of the report. When I returned from annual leave, I had received an email from Mr RC which contained a reworded final report. I say that I was not involved in any discussions or decisions regarding the rewording of this report. I communicated my concerns regarding the rewording of this report to Mr RC via email on the 20 June 2017. I also requested that my name be removed from the report as I felt it was not accurate. I specifically highlighted that fact that these reports needed to be accurate given the significant focus the Central Bank of Ireland had placed on Compliance Monitoring. The Respondents CEO, Ms EB was also copied in this correspondence.

One – One Meetings with Mr RC

On 26 June 2017, I had my first one to one with Mr RC following his appointment as Head of Compliance. This meeting followed on from Mr RCs email of the 16 June 2017 in which he stated that he wished to deal with a number of points on a one to one basis. Mr RC wanted to identify individual needs within the team, identify areas that needed to be adjusted, areas that required additional support and to clarify roles, responsibilities and tasks. During this meeting I reiterated my concerns regarding the engagement of the Respondents senior management with Compliance Monitoring and I advised Mr RC that this lack of co-operation and obstructive behaviour was having a significant impact on the Compliance Monitoring Plan. Mr RC agreed that these were genuine concerns and now that he was Head of Compliance it was firmly on his radar and that he would raise the issue again with Ms EB, at a scheduled meeting the following week. Mr RC stated that he was preparing a report for the Management Committee and that all the delays and the reason for those delays around Compliance Monitoring would be documented and presented to the Management Committee as he hoped that this would raise awareness of the challenges faced by the Compliance Team, especially Compliance Monitoring. Mr RC also informed me that the current flat line organisational structure within the Compliance Team was not suitable and the he wanted to introduce a more hierarchal structure that reflected people’s seniority and responsibilities within the team. Mr RC did not communicate any issues with any aspect of my performance during this meeting.

On the 31 July 2017, I had a second one to one meeting with Mr RC. During this meeting we discussed the delays to the Compliance Monitoring Plan and we also discussed in detail the refusal of the Investors Services Team to provide the required information to complete the Investor Services Anti-Fraud Compliance Monitoring Review, this review was initially scheduled for completing in 2016.I informed Mr RC that this represented a significant escalation in the level of obstruction coming from the Investor Services Team. Mr RC noted his unhappiness with the stance taken by the Investor Services Team, and he informed me that he would raise the issue with Ms EB. I quired if I could send the email that I drafted for his review setting out the position of the Compliance Team regarding this refusal. Mr RC asked that I hold off from sending this as he hoped to convince the Investor Services Team to co-operate. Mr RC advised me to start drafting the Investor Services Anti-Fraud Compliance Monitoring Review Report based on the refusal of the Investor Services Team refusal to co-operate. Mr RC did not communicate any issues with any aspect of my performance during this meeting.

On the 01 September 2017, I had my third and final one to one meeting with Mr RC. During this meeting we discussed the delays to the Compliance Monitoring Plan. I informed Mr RC about the progress of the Investor Services Anti-Fraud Report and how I had drafted some strong narrative regarding the obstruction I encountered from the Investor Services Team. Mr RC agreed that this was necessary and asked to review the Report before it was distributed.   We also spoke about our respective wedding plans and the progress Mr RC was making on his UCD master’s course. Mr RC did not communicate any issues with any aspect of my performance during this meeting. After I made my protected disclosure on the 22 September 2017, I had no further one to one meeting with Mr RC. During the same period 02 September 2017 to 30 November 2017, my direct peer, Mr HW had 2 One to One meeting. Mr HW received a pay increase based on his 2017 Performance Review.

2017 Compliance Plan Mid-Point Review

During July 2017, Mr RC prepared a 9-page document titled “Appendix 1: 2017 Compliance Plan Mid-Point Review”, I requested that this document be made available by the Respondent for the purpose of this hearing. This document identified all the activity of the Compliance Team since January 2017 to July 2017 and compared this with the plan. Mr RC documented the progress of each piece of work and then identified how this compared to the plan. Mr RC included all Compliance Monitoring Reviews in this document. Mr RC identified Compliance Monitoring Reviews as a key focus of the Central Bank of Ireland on the embedding of the Risk Mitigation Programme. Mr RC documented all of delays in the delivery of the Compliance Monitoring Reviews and he provided details for these delays in a comment section of the document. These comments included delays resulting for carry over of previous scheduled reviews for 2016, uneven distribution of reviews over the 12 months and lack of cooperation from the Investor Services Department. Mr RC stated that the issue of lack of cooperation was escalated internally. This document was provided in the Compliance Update to the Management Committee of the Respondent for the July reporting period. Mr RC would later attempt to attribute all of these delays to me in my December 2017 performance review.

Investor Services Anti-Fraud Report

The Investor Services Anti-Fraud Report is the root and heart of my protected disclosure. I made this disclosure to the Respondents Head of Compliance, Mr RC, on the 22 September 2017 and on the 03 October 2017.This review was initially included in the Compliance Plan for 2016 but was carried over and the included in the Compliance Plan for 2017. This review was scheduled as a result of guidance issued by the Central Bank of Ireland. This Compliance Monitoring Review was to evaluate the effectiveness of the Investor Services measures in verifying the legitimacy of all Investor instructions received, to determine whether the Respondent could be satisfied that any potentially fraudulent or suspected unauthorised activity was being identified. The Respondents CEO, Ms EB was also the Head of the Investor Services Department, the department that was subjected to this review.

This review was scheduled to take 6 weeks to complete and commenced in December 2016. I say that I led this review and experienced significant levels of lack of co-operation and obstruction from the Investor Services Team when completing this review. Between January 2017 and September 2017, I raised all the issues I encountered at every Compliance Team weekly meeting, at least 30 meetings, over the course of 9 months. The Head of Compliance, Mr RC and all my Compliance Team colleagues were aware of the lack of co-operation and the significant levels of obstruction that I encountered from Ms EB’s team. Mr RC informed me on number of occasions, at weekly team meeting and specific meeting to discuss this review, that he was attempting to get Ms EB’s team to co-operate with this review. Mr RC had a weekly standing meeting with Ms EB. Mr RC documented that lack of corporation in relation to this review and all other reviews in the Appendix 1: 2017 Compliance Plan Mid-Point Review (2017 Compliance Plan - Mid Point Review-July 2017).

On or about 24 July 2017, Mr RC informed me that he had received a phone call from Mr LD , a Director within the Investor Services Function. Mr LD reports directly to the Respondent’s CEO and Head of Investor Services, Ms EB. Mr RC informed me that during this call he was informed by Mr LD that no further information would be provided to the Compliance Team to facilitate the Investor Services Anti-Fraud Review. Mr RC informed me that Mr LD informed him that this direction came from Ms EB. I say that I expressed disbelief with the position adopted by the Respondents senior management towards the workings of an internal control function. I immediately drafted an email in response to the position adopted by the Respondents senior management and I sent a draft of this email to the Head of Compliance, Mr RC, for review before sending it to Ms EB and Mr LD. Mr RC agreed with the wording of my draft email but requested that I hold off sending the email to Ms EB and Mr LD until he had an opportunity to speak with Ms EB.

On or about September 2017, the Head of Compliance, Mr RC requested that I finalise the Investor Services Report as he had not succeeded in convincing the Investor Services Team to co-operate with the Compliance Monitoring Review. I drafted the report and provided every member of the Compliance Team with a draft copy so as to give everyone an opportunity to express a view given the significate findings of the report. Mr RC provided his feedback on the report by way of comments which were inserted into the document. Mr RC approved the distribution of the report by email on 18 September 2017. The report made significant negative findings against the Investor Service Team. The negative findings stated that the level of obstruction resulted in the Compliance Team being unable to determine whether procedures and controls around changes to investor data were followed, it found that the Compliance Team were unable to confirm that the Investor Services Function had in place effective procedures and controls to reduce the operational risk of fraud, and finally, it noted that the refusal of the Investor Services Team to co-operate with the review acted caused significant delays to the work of the Compliance Monitoring Programme.

Immediately following the distribution of the report, Mr RC received a phone call from Mr LD. Mr RC informed me that Mr LD was livid about the wording of the report and had been under the impression that Ms EB had instructed the Compliance Team not to issue the report. On the 22 September 2017, Mr RC scheduled a meeting to discuss another topic. At the end of this meeting Mr RC invited Ms TN to join us as she had assisted me in conducing the reviewed. Mr RC informed me that he had a meeting with members of the Investor Services Team regarding the Investor Services Report. I was not party to these discussions. Mr RC informed those present that the report would have to be re-opened and reworded as Ms EB would not agree to having the report issued in its current form. The view was taken that the report showed the Investor Services Team in a very bad light. I informed Mr RC that I would not part take in a white washing of the facts and I would not falsely document, systems, procedures, controls and oversight and governance arrangements that were not followed nor in existence. Mr RC reiterated the point the Ms EB would not sign off on the current wording. I expressed that Ms EB had a significant conflict of interest in relation to this review. I immediately informed Mr RC that if the report was white-washed or altered in any way to mislead the reader to show purported compliance, I would contact the Central Bank of Ireland. Mr RC informed me that he now needed to raise this issue with Ms EB and members of the Management Committee. Immediately after this meeting I sent an email to Mr RC expressing my views. This email was sent at 5.31pm on the 22 September 2017.

I asked Mr RC at the next Compliance Team weekly meeting if he had any update to share with the team regarding the Investor Services Anti-Fraud Compliance Review, Mr RC informed the meeting that the matter was with members of the Management Committee and that they were aware of my position. I received a response from Mr RC by email on the 03 October at 09:07am stating that he was the Head of Compliance and that any decision to be taken was his to take. I immediately responded by email stating that I would await the final report before deciding what action to take.

While I was on sick leave doing the period 04 December to 08 January 2018 the Anti-Fraud Compliance Monitoring Review Report was finalised on or about the 08 December 2017. I did not have access to the reworded report, and I learned this from reading the Compliance Update to the Management Committee for the period December 2017.

The findings of the Investor Service Anti-Fraud Report were significant considering a recent, 15 June 2018, Central Bank of Ireland enforcement action taken against another regulated firm, YY Management. This enforcement action arose out of failings in relation to fraud controls at YY Management. I say that in this instance YY management were fined €443,000 for similar failings identified at the Respondent, particularly in relation to compliance oversight, governance arrangements and systems of internal control.

After the making of my protected disclosure I had no further one to one meeting with Mr RC and our working relationship deteriorated. Mr RC no longer contacted me regarding compliance monitoring tasks/queries and bypassed me to seek and provide updates via junior team members. In effect, I had been isolated and demeaned in the workplace by way of retaliation for the above. I received an email from Mr RC on the 23 November 2017 scheduling my year end performance review for the 30 November 2017 and setting out the process. This was the same process as my previous annual review, and it did not require any information to be submitted in advance of the review. I learned that my direct peer was to be promoted and that some structural changes were to be made to the team. This caused me concern as I was not offered any opportunity at promotion nor was I even aware that any such opportunity existed. I sent an email to Mr RC setting out my position and concerns. Shortly after I sent this email, I was approached byMs EB who told me that she wanted to have a chat about my email in the company’s main board room. This meeting was not scheduled internally, and I only became aware of the meeting when Ms EB asked me to come to the board room. I say that during this meeting, I informed Ms EB that I was concerned that any changes would result in my demotion. I made it clear that if I was demoted. I say that Ms EB laughed and said that she could promote anyone she wanted. Ms EB informed me that I had “the wrong attitude” for the Respondent and pointedly asked me if I was happy there. I reasonably took this as a suggestion that I should leave my employment and I saw this as a threat to my employment. Immediately after this meeting my performance review which was scheduled for 30 November was cancelled and rescheduled to the 01 December by Mr RC. Mr RC also requested that I provide additional information in advance of this meeting, information that none of my other team members were required to provide in advance.

Prior to the 2017 performance review I maintain that I performed superbly well in my employment with the Respondent and I was never the subject of any disciplinary complaint, investigation, finding or sanction. At no point in time did I receive any negative feedback about any aspect of my performance. In fact, I received an email on the 31 August from Mr RC referring to my “Great work” and another on 18 September referring to my “Good Work”. The only time in over 22 months any concern was expressed by the Respondents senior management regarding the compliance monitoring plan delays was in an email on 19 January 2018. This email was issued to me after the making of my protected disclosure and after I initiated proceeding in the WRC.

2017 Performance Review

I attended my rescheduled 2017 performance review with Mr RC on 01 December 2017. Unique among my peers, I had been required to provide Mr RC with sight of my personal evaluation prior to the review, a process which was not followed with any other members of the team who had all met with Mr RC to coordinate their reviews before finalisation. My performance appraisal was the last to be scheduled but was the first to be finalised. Prior to the commencement of the meeting, and in a shattering experience, I was first essentially accused by Mr RC of recording the review meeting, I was obliged to hand over my mobile phone to ensure that I was not. This fact was confirmed in writing via correspondence I received from the Respondents solicitors on the 18 January 2018.

Mr RC confirmed that he was promoting one of my direct peers above me and, when I reasonably asked why I had not been afforded the opportunity to apply for this promotion, Mr RC told me that I did not “meet the relevant criteria”. When asked for these criteria, Mr RC refused to respond.Mr RC stated that my actions were “indicative of someone in self-destructive mode” and accused me of damaging my reputation within the Respondent. He advised me that both my health and professional life would deteriorate if I took any action against the Respondent. I reasonably took Mr RC’s remarks as a threat to my employment.

Mr RC proceeded to provide me with a grossly unfair and inaccurate review of my performance, in which I was blamed for delays which Mr RC was aware were not my fault. In the Appendix 1: 2017 Compliance Plan Mid-Point Review (2017 Compliance Plan - Mid Point Review-July 2017) Mr RC attributed these delays to other factors, factors such as delays in obtaining information from the Investor Services Team, carry over from 2016 and re balancing. Mr RC reported these delays and reasons for these delays to the Management Committee in July 2017. Furthermore, Mr RC accused me of poor “team spirit”, a clear reference to my refusal to accede to the Investor Services’ insistence that he unlawfully whitewash my compliance report. Mr RC informed me that he and Ms EB had collaborated on my performance review the evening before and that it would be pointless in complaining to anyone as he had the full support of Ms EB for everything that occurred in the room. I was given absolutely no opportunity to make representations prior to the performance review approval. Before I left the room, I asked Mr RC if this was the result of my protected disclosure, he did not respond but smiled. As a result of this egregiously biased review, I suffered financial detriment in receiving no increase in pay / bonus for 2018 and lost any opportunity for promotion.

I was shocked, distressed and upset with the entirely unexpected events that unfolded, I immediately went to the office of the Respondents Human Resources Director, Ms ED, to inform her about what had just occurred and to seek her advice. Ms ED was not available. I immediately left the office and went home. I sent Ms ED email stating that “Following a 3pm meeting with Mr. RC, I have left the office as I was extremely stressed. From today’s meeting I fear a campaign of constructive dismissal is being pursued against me”. Ms ED provided a response 50 mins later and wrote “Unfortunately I am out of the office this afternoon at an external meeting. I am back in the office Monday and will contact you then”. As a result of the events of 01 December 2017 my health collapsed and I attended my GP on the 04 December 2017. I was prescribed sleeping tablets and I was advised that I take a period of certified sick leave. I was on a certified sick leave of absence from 04 December 2016 to 09 January 2018 with work-related stress. I was so concerned for both my health and my employment by the threats that were made, that while on certified sick leave, I immediately started looking for alternative employment and attended my first job interview in more than two years on the 14 December 2017 with XX Limited. I had to return to the Respondent company on 08 January 2018.

I returned from certified sick leave on the 08 January 2018. Prior to my return from sick leave my solicitors wrote to the Respondent on 5 January 2018, requesting urgent confirmation that threats against my employment, reputation and health would cease, and that no further acts of penalisation would be perpetrated against me. No meaningful response was received from the Respondent for a two-week period, this blatant disregard for my welfare compounded my stress and anxiety. When I returned to the Respondent I was further penalised. A significant amount of emails were removed from my inbox and I initially believed that these were taken to facilitate my data access request. I subsequently learned that these were removed under the guise of archiving, and given the selective nature of the process, I am of the view that this was to prevent me from obtaining documentary evidence that would demonstrate the difficulties, obstacles, challenges and the general obstructive environment faced by me when dealing with the Respondents senior management. My ability to print was withdrawn for a period of time by the Respondent, this was a deliberate act by the Respondent as all my colleagues were able to print and when I contracted the IT department, I was told it was a minor glitch in the system. The withdrawn of my ability to print documents in the workplace, was an obvious and outrageously defamatory act by which the Respondent who was clearly signalling to my work colleagues that I could not be trusted. I did not have access to the amended Investor Services Anti – Fraud Report, this report was amended and distributed for approval to senior management on the 08 December 2017, one week after I went on certified sick leave and one week after I raised the issue with the Respondents CEO. My access to this report was removed as the Respondent was concerned that I would report any white-washing exercise to the Central Bank of Ireland.

I was further penalised by two members of the Respondents senior management, Mr NB and Mr GM. Mr NB is a board member, senior managing director and has responsibilities for human resources. I worked at the Respondent for a period of 23 months and would have bumped into Mr NB on numerous occasions around the office, Mr NB never once acknowledged me. When I initiated legal proceedings against the Respondent Mr NB would acknowledge me by my name and with a smile on his face. I found this quite disturbing, intimating and stressful. Mr GM is the Respondent’s Director of Finance and Accounting, Mr GM is also involved in Human Resources within the Respondent company. When I was using the toilet facilities on or about the 25 January 2018, Mr GM entered the facilities and stood and stared at me while I was using the facilities. I found this quite disturbing, intimating and stressful. I was so shaken following this encounter that I confided in a Compliance Team colleague, Ms ET. The 25 January was my last day in the offices of the Respondent. I contacted Mr RC on the morning of the 26 January 2018 to inform him that I would not be in the office on that day as I was not feeling well. I found the behaviour of Mr GM and Mr NB disturbing, intimating and stressful.

I received a response from the Respondent’s solicitors on 18 January 2018, in which they failed to confirm that threats against my employment, reputation and health would cease, and that no further acts of penalisation would be perpetrated against me. On my return, I suffered additional penalisation. Furthermore, on reading the response provided by the Respondents solicitors I was extremely distressed to learn that while I was reaching out to the Respondents Human Resources Function to seek advice following the threats made against me at my 01 December 2017 meeting with Mr RC, they had been advising Mr RC to inspect my mobile devices prior to the commencement of my 2017 performance review. I found this disclosure to be extremely sinister as no legitimate performance review would commence with the inspection of an employee’s mobile device. It should be noted that Mr NB, Board Member and Senior Managing Director is responsible for the Human Resources Function. I had no choice but to resign on the 05 February 2018.The behaviour of the Respondent was such that the relationship of trust was damaged beyond repair and the entire situation was having a significant impact on my health. I resigned on the 05 February 2018.

Following my constructive dismissal, on 05 February 2018, I secured new employment with , in the position of Compliance Manager. I commenced on a gross annual salary of €95,000 per year.

LEGAL SUBMISSIONS:

The Protected Disclosures Act, 2014 and the Unfair Dismissals Act, 1977-2015

A.            The Fact of the Protected Disclosure

Section 5 of the Protected Disclosures Act, 2014 provides that a protected disclosure means a disclosure of relevant information made by a worker in a specified manner.

Section 5(2) defines information as ‘relevant information’ if: in the reasonable belief of the worker, it tends to show one or more relevant wrongdoings; and it came to the attention of the worker in connection with the worker’s employment.

Section 5(3) defines ‘relevant wrongdoing’ as including:

‘(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.’

Section 5(7) of the Act states that the motivation for the making a disclosure is irrelevant to whether or not it is a protected disclosure.

Section 6(1) of the Acts states that a disclosure can be made to a worker’s employer. Section 5(2) states that if this is the case, it is made in the appropriate specified manner and is by virtue of same ‘protected’, where the worker has a reasonable belief that the information disclosed shows or tends to show that the wrongdoing is occurring.

In the case at hand, I made disclosures to Mr RC to the effect that I would not par take in a white washing of the facts and I would not falsely document, systems, procedures, controls and oversight and governance arrangements that were not followed nor in existence within the Respondent Company. The purpose of this exercise was to give the Central Bank of Ireland that false impression that adequate or effective internal systems, controls and policies to identify, monitor and manage risk in relation to the Respondent activities such as operational risk or fraud risk were appropriate. Furthermore, I did not want to find myself in a position where I was providing false or misleading information to the Central Bank of Ireland nor did I want to be in breach of my fitness and probity obligations. I would submit that I am not obliged to mark or label my disclosures as a protected disclosure for the Protected Disclosures Act, 2014 to apply.

I maintain that the above disclosure comes within the definition of section 5(3)(b) and (d) of the 2014 Act, that being that the disclosure related to: a failure to comply with a legal obligation regarding financial services legislation and the Criminal Justice (Money Laundering and Terrorist Financing) Act 2010, as amended by Part 2 of the Criminal Justice Act 2013 ("Act"). I maintain that I made the disclosure to my employer and that I had a reasonable belief that the disclosures tended to show wrongdoing and that the issue came to my attention in connection with my employment. I maintain I have satisfied the requirements of the 2014 Act and that the disclosure amounted to a protected disclosure for the purposes of the 2014 Act and that, as such, I am protected from penalisation.

Section 5 (8) of the Act states that 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. As such, it is respectfully submitted that the burden of proof rests on the Respondent to prove on the balance of probabilities that the Complainant’s disclosure was not a protected and, until that time, the disclosure is presumed to be protected.

B.            Protection of Employees from Unfair Dismissal for having made a Protected Disclosure

Section 11 of the Act amends the Unfair Dismissals Acts to protect employees from being penalised as a result of having made a protected disclosure by making dismissal for having made a protected disclosure an automatically unfair dismissal entitling an employee to relief under the Act.

In Dougan & Clark v Lifeline Ambulances Ltd (Unreported, Circuit Court, Comerford J), Judge Comerford considered what circumstances would amount to substantial grounds for a Court to conclude that a dismissal has resulted wholly or mainly from the making of a protected disclosure. Therein, Comerford J concluded that such factors would necessarily include: the temporal proximity between the making of the protected disclosure and the dismissal; whether any animosity arose between the parties as a result of the protected disclosure prior the dismissal; and whether the Complainant was treated in a less favourable manner to comparative employees who had not made protected disclosures. Comerford J concluded that, on the facts of the case, particularly the fact that there was a temporal proximity of 2 and a half months’, that the dismissal had resulted wholly or mainly from the protected disclosure.

In the case at hand, there is a striking temporal proximity of 2 months. The Respondent failed to afford me an objective performance review free from bias. I was treated less favourably than hypothetical comparators who might not have made a disclosure, in that I was obliged to hand over my mobile phone prior to the commencement of my performance review meeting. I was not afforded an opportunity to make representations prior to the approval of my performance review and I was informed by Mr RC that it would be pointless in complaining to anyone as he had the full support of Ms. EB for everything that occurred in the room. As such, I respectfully submit that the Respondent unfairly dismissed me for having exercised my rights under and made a disclosure pursuant to the Protected Disclosure Act, 2014.

Section 1 (b) of the Unfair Dismissals Act, 1977 defines constructive dismissal as “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.”

I would submit that the case at hand meets the two tests contained within this definition. I would submit I was entitled to terminate the contract of employment because of a fundamental breach of trust on the part of the Respondent. During my performance review with Mr RC, I was accused on recording the review meeting obliging me to hand over my phone to demonstrate that I was not. My role involved a significance level of interaction, including meeting with member of senior management, and high degree of trust is necessary. Mr RC actions were endorsed by the Respondents HR Function. This action was damaging to the relationship of trust that had and needed to exist between the parties.  

Applying the test of “reasonableness” to the case at hand, I would submit that the conduct of the Respondent was such that it was reasonable for me to resign. Over a period on 9 months the lack of engagement, lack of corporation, the level of obstruction, and the failure to allow me unfettered access to necessary information to conduct reviews made my job impossible. I brought all of these to the attention of management at 30 separate team meeting, three One to One meeting, emails and specific monitoring review meetings over the course of 9 months. Mr RC documented the levels of lack of engagement, lack of corporation, obstruction, and the failure to allow me unfettered access to necessary information in 4 internal reports. Mr RC informed me that these issues were communicated to the Respondent CEO. Mr RC initially documented these delays in a July 2017 report with the reasons for these delays. Given the situation deteriorated significantly over a period of 9 month, I submit that I acted reasonably in tendering my resignation.

RELIEF SOUGHT BY THE COMPLAINANT:

1.            The Protected Disclosures Act, 2014 and the Unfair Dismissals Act, 1977-2015

Section 11(1)(d) of the 2014 Act amends the Unfair Dismissals Acts to increase the maximum award for an unfair dismissal resulting wholly or mainly from the making of a protected disclosure from 104 weeks or 2 years’ loss of income, to 260 weeks or 5 years’ loss of income.

In the case at hand, I have satisfied the requirement upon me pursuant to the 1977 Act that I seek to mitigate my loss by successfully searching for and commencing new employment on 13 February 2017. As such, I maintain that I was unemployed and at a complete loss of income for days between the 02 February 2018 and 12 February 2018

Furthermore, in my new employment, I am in receipt of a gross annual salary of €95,000. This represents a gross annual increase when compared to my employment with the Respondent at €72,800.

In the present case, it is respectfully submitted that the financial loss suffered as a result my herein was entirely attributable to the conduct of the Respondent, and that no element of my can reasonably be said to have contributed to same. Furthermore, I have highlighted the extent and severity of the Respondent’s wrongdoing and the implications that it had on me. In these circumstances, it is respectfully submitted that the appropriate level of financial compensation should amount to my total loss recoverable under the act,

The “But For” Test

It is respectfully submitted that “but for” the making of my protected disclosure, I would not have been penalised. “But for” my protected disclosure, Mr RC and I would have continued to have one to one meetings. “But for” my protected disclosure our working relationship would not have deteriorated. “But for” my protected disclosure Mr RC would have continued to contact me regarding compliance monitoring tasks/queries and would not have bypassed me to seek and provide updates via junior team members. “But for” my protected disclosure, Mr RC would not have unfairly treated me by accusing me of recording the performance review meeting, and I would not have been obliged to hand over my mobile phone to ensure that I was not. “But for” my protected disclosure I would not have been overlooked for promotion. “But for” my protected disclosure Mr RC would not have stated that my actions were “indicative of someone in self-destructive mode” and accused me of damaging my reputation within the Respondent. “But for” my protected disclosure Mr RC would not have threatened my health, reputation and professional life if I took any action against the Respondent. “But for” my protected disclosure Mr RC would not have provided me with a grossly unfair and inaccurate review of my performance. “But for” my protected disclosure I would have received a 2017 pay increase similar to that of my direct peer, Mr HW. But for” my protected disclosure, Mr RC would not have stated that my actions were “indicative of someone in self-destructive mode”. “But for” my protected disclosure, Mr GM and Mr NB would not have tried to harass or intimate me.

The penalisation I experienced was motivated wholly due to the fact that I had made a protected disclosure and as a result of having exercised my rights under the Protected Disclosures Act, 2014.

The Act gives the Adjudicator jurisdiction, in the event that the Adjudicator finds that the Respondent did penalise the Complainant, to make an determination that the Respondent: “pay to the employee compensation of such an amount as is just and equitable having regard to all the circumstances.” I submit that I suffered egregious penalisation at the hands of the Respondent. Furthermore, I would highlight the extent and severity of the Respondent’s wrongdoing and the implications that it might have not only on the me, but also on its other members of staff, clients and the wider members of society, as well as the need to dissuade the Respondent from ever conducting itself in a similar manner in the future. I submit that same, along with whether my claim for unfair dismissal is successful, should be taken into account in determining what amount is just and equitable in this case.

The within submissions are outline in nature only and are not intended to be read as the Respondent’s entire position in respect of the Applicant’s claim for penalisation pursuant to the provisions of the Protected Disclosures Act 2014 or for constructive unfair dismissal.

These submissions are designed to provide the Adjudication Officer with a high level overview of the Respondent’s defence to these proceedings.

At the outset it is important to state the Respondent denies the Applicant’s claim that he was a person who made a protected disclosure and was penalised. Furthermore, it is denied the Applicant was constructively dismissed. The Applicant has not provided a written submission to the Workplace Relations Commission and accordingly the Respondent has based this submission on the terms contained in the Applicant’s claim forms. In this regard the Respondent fully reserves its right to raise additional points of defence to include preliminary matters concerning time limits and jurisdictional issues should additional information come to light.

At the outset of the Respondent’s submission and the Adjudication Officer embarking upon the hearing of this action it is important to be aware of the existence of High Court orders which are in place in the context of legal proceedings between The respondent v. The complainant bearing record number: XXXX. A copy of the Order is attached.

THE PROTECTED DISCLOSURES ACT 2014 (“the PDA”)

The complainant did not make a protected disclosure.

The complainant is not entitled to maintain a claim under the protected disclosures legislation as he is not a person who has made a protected disclosure within the meaning of the PDA or at all.

In the absence of a submission from The complainant on this issue it is not entirely clear when he alleges he made a protected disclosure. However, it would appear his contention is that he is a person who made a protected disclosure on either the 20th June 2017, at a date unknown in September 2017 and/or 27th November 2017. Either way, his contention that he is a person who made a protected disclosure while in the employment of the Respondent such as is necessary to ground his claim for penalisation does not withstand any form of scrutiny and must be dismissed.

Section 5 of the PDA sets out the meaning of a protected disclosure. It states:-

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.

It is difficult to understand how it can be alleged by the complainant that any of the communications he had with the Respondent in either June 2017, September 2017 or November 2017 could even be argued as amounting to a protected disclosure. The Respondent, in an effort to assist the efficient progression of this hearing, proposes to address each of these communications to illustrate why it is the case that no protected disclosure can be made out by the Applicant in respect of any of these matters.

The three alleged communications are dated 20th June 2017, an unknown date on September 2017 and 27th November 2017.

COMMUNICATION OF 20th JUNE,2017

The email exchange between the complainant and the Head of Compliance, Mr. RC (whom The complainant reported into) concerned The complainant’s decision to have his name removed from a report prepared by the compliance department of the Respondent on the issue of its Gifts and Hospitality policy. A copy of this email exchange is exhibited.

A review of the email exchange between the complainant and Mr. RC illustrates that the complainant did not wish his name to be included in the final document although significantly The complainant stated: “I am happy for you to distribute the report containing your wording with my name removed”. The complainant’s communicated concern around the wording of the final policy is stated in his email of the 20th June 2017 at 13:33 as follows:

“While Senior Management were familiar with the existence of both policies they were not familiar with the details contained within each policy and consequently, were not familiar with their obligations. This observation was established on telephone conversations and email exchanges within members of senior management. Any documented observation should highlight the fact that senior management were not familiar with the details of the policy and further, additional training should be provided to senior management.”

The complainant’s position was that he believed, as a result of his “field” work in preparation for the report on the gifting policy, that staff in departments of the Respondent delayed in providing him information concerning their gift register and that staff asked questions which suggested they were not familiar with the terms of the conflict of interest policy around receiving gifts.

These issues do not amount to a protected disclosure or wrongdoing within the meaning of the PDA.

Significantly at no point in the exchange between the complainant and Mr. RC was there any suggestion that this issue resulted in any actual breach of the Gifts and Hospitality policy or even potential breach of the policy. (Indeed the evidence from the Respondent will be that there are virtually no gifts received by the Respondent’s servants or agents). Moreover, an internal delay in providing documents in respect of an entirely internal review and/or an alleged failure on the part of a small number of staff in terms of the exact detail of a policy does not and could not amount to wrong doing or failure to comply with a legal obligation within the meaning of the PDA.

Simply put, ‘concerns’ of this nature do not meet the threshold required for a protected disclosure at law. The issues raised by the complainant in his emails were no more than concerns. They do not amount to relevant information tending to show wrongdoing on the part of the Respondent or its servants and/or agents.

To further evidence this fact it must be noted that no ‘relevant information’ was communicated by The complainant to the Respondent in any of the emails on this issue between 14-20th June 2017. Relevant information must be exchanged between the alleged whistle-blower and another party for a protected disclosure to have been made.

The standard of relevant information is only met if the worker is of the ‘reasonable belief’ that the information he possesses tends to show one or more relevant wrongdoings and that the information being communicated came to the attention of the worker in connection with his employment. It is most significant that the complainant at no time references in his emails that he believes he has uncovered wrongdoing or that he believes himself to be making a protected disclosure.

Lest it be necessary to illustrate this point further the Respondent will rely on the English decision of the Employment Appeals Tribunal (equivalent to Labour Court/Circuit Court) in Everett Financial Management Ltd v Murrell EAT/552/02, 18 December 2002. In this case the respondent was employed as an equities dealer by the appellant. He claimed that he had been constructively dismissed by reason of his having made a protected disclosure. He asserted that he had made a disclosure in 2000 when he and 18 of his colleagues became concerned about a particular practice that they were required to carry out and signed a petition seeking assurances from the appellant’s directors that they were not engaged in an activity that was unlawful or that could be construed as unlawful. The ET concluded by a majority that the signing of the petition was a protected disclosure within section 43B of the 1996 Act. The minority members’ view had been that the petition was not a protected disclosure because it did not specifically name or identify a practice which could be identified as making a disclosure for the purpose of the Act. On appeal the English EAT agreed with the minority view and held that the petition did not disclose any information. It concluded that simply raising and expressing concerns and seeking assurances that there had not been a breach of a legal obligation did not amount to a protected disclosure under the Act.

Here the complainant provided no information which supports any assertion he may make to the effect that he provided relevant information which, in his reasonable belief, tended to show a wrongdoing. In this regard his own claim form makes this point best. He states:

“In June 2017 the Claimant was obliged to request that his name be removed from a report in relation to the procedure to be followed when receiving gifts from clients (the Conflicts of Interest and Gifts and Hospitality Policies). He was obliged to do so firstly because of a lack of cooperation on the part of the Respondents HR department, who claimed that they did not have time to cooperate with his review. In addition, it came to his attention that some members of the Respondent’s senior management team were not familiar with the relevant policies despite having previously signed a compliance manual by which they confirmed their awareness.”

Simply put, this cannot amount to a protected disclosure which triggers rights for the complainant under the PDA.

The Respondent, if necessary, will also rely on the on the decision of Cavendish Munro Professional Risks Management Ltd v Geduld [2010] ICR 325.

It is further submitted that The Complainant could not have had a reasonable belief that there was any wrongdoing being engaged in by the Respondent. The Complainant is a qualified barrister. He is a very well educated individual and is someone who works in a regulatory/compliance environment. He well knew or ought to have known that the concerns raised by him in his email of the 20th June 2017 could not amount to a legal wrongdoing or a wrongdoing within the meaning of the PDA and that the issues raised by him, simply put, do not illustrate any alleged wrongdoing or failure on the part of any person to comply with a legal obligation.

The Complainant did not have a “reasonable belief” that the matters referenced in his email communications amounted to a criminal act or a failure to comply with a legal obligation in accordance with the PDA. In this regard, the decision of Eiger Securities LLP v Korshunova [2017] ICR 561 is of particular importance. This case illustrates the fact that you as the Adjudicating Officer in this case must be satisfied that the information purportedly amounting to a protected disclosure actually discloses an alleged wrongdoing. In that decision the EAT said:

“The identification of the obligation does not have to be detailed or precise, but it must be more than a belief that certain actions are wrong. Actions may be considered to be wrong because they are immoral, undesirable or in breach of guidance without being in breach of a legal obligation. However, in my judgment the ET failed to decide whether and if so what legal obligation the claimant believed to have been breached. The decision of the ET as to the nature of the legal obligation the claimant believed to have been breached is a necessary precursor to the decision as to the reasonableness of the claimant’s belief that a legal obligation has not been complied with”.

The complainant will not be in a position to establish any alleged wrongdoing in respect of the Gifts and Hospitality issue and his claim under this heading must be dismissed.

THE COMPLIANCE MONITORING REVIEW REPORT – COMPLIANCE MONITORING REVIEW OF INVESTOR SERVICES ANTI-FRAUD MEASURES

The Respondent was forced into a position in June 2018 which resulted in it issuing High Court proceedings against the complainant to restrain him from utilising its confidential information which he unlawfully removed from its systems while an employee and which he retained following his decision to resign. A copy of the Order of the High Court which remains extant is available at Appendix 1. This order covers the Compliance Monitoring Review Report - Compliance Monitoring Review of Investor Services Anti-Fraud Measures (the   “CMRR”).

The complainant did not make any protected disclosure concerning the compliance teams Investor Services Anti-Fraud Compliance Monitoring Review. The complainant alleges in his claim form that his field work in preparation for this review report was met with ‘extraordinary levels of non-cooperation and obstruction by Investor Services’. He alleges certain documents were not provided to him namely call logs. He alleges he discussed these with his manager Mr. RC and was advised that no further information would be forthcoming. He complains that in September 2017 he informed Mr RC he would complete his report and confirm that Investor Services did not co-operate with the review. Copies of the email exchanges between the complainant and Mr. RC on this issue are attached thereto at Appendix 3.

Following this communication Mr. RC obtained all the outstanding information from Investor Services and the report was completed. It is not the case that a member of Investor Services demanded the report be ‘redrafted’; rather the information that was outstanding was collated and the report was completed. The complainant did refuse to amend the report however in making this complaint he entirely misses the point which is that the final wording of the report was and is a matter for the Head of Compliance, Mr. RC.

This was communicated to The complainant in an email dated 3rd October 2017 from Mr. RC, Head of Compliance and The Complainant responded by saying

“Hi RC, Many thanks for the update. I will await the final version of the report before determining the next steps, Thanks …..”

Copies of the email exchanges between the complainant and Mr. RC on this issue are exhibited.

This was the end of the matter. No complaint was made or raised by the complainant through the Respondent’s detailed Whistleblowing policy a copy of which is exhibited

As before, there is no documentation or communication available on this issue which suggest (a) the exchange or communication of any relevant information as is required in order for a protected disclosure to exist, (b) there is no reference whatever in the complainant’s communications that he was making a ‘protected disclosure’ or (c) no communication of an issue that amounted to a wrongdoing or breach of any legal obligation.

Simply put, the complainant’s case that his concerns over the wording of the CMRR amounted to a protected disclosure does not withstand even the most basic scrutiny.

THE STRUCTURE OF THE COMPLIANCE TEAM:-

The complainant’s frustration with his position in the compliance team as evidenced in his email of the 27th November 2017 could never be classified as a protected disclosure. It is this communication which the complainant suggests resulted in him being called to a meeting on the 29th November 2017 where he was allegedly subjected to negative comment by Ms. EB (which is entirely denied). A copy of this email is exhibited

The email of the 27th November 2017 does nothing more than express the complainant’s frustration/grievance of an internal team change which he believed was disadvantageous for him. By way of background, the Compliance team in the Respondent company is comprised of individuals holding the titles listed below (in order of seniority):

1.            Head of Compliance;

2.            Compliance Director;

3.            Compliance Officer; and

4.            Compliance Intern

Ms ELB was initially hired as Compliance Director and Head of Compliance with responsibility for AML/CFT (PCF-15) in December 2014. Ms.ELB was promoted to Managing Director level in October 2015. Ms. ELB retained the formal title of Head of Compliance and occupied this role until she left the Company in December 2016. Following her departure, Mr. RC was promoted to the role of Compliance Director in January 2017 and, from January 2017 to June 13, 2017, Mr. RC was the acting Head of Compliance before being formally appointed to the role of Head of Compliance on June 14, 2017 and continues to occupy this role. Of note is the fact this change in team structure took place in January 2017 following the departure of Ms. ELB which lead to the ultimate promotion of Mr. RC into the role of Head of Compliance on 14 June 2017. Of crucial significance is the fact this occurred prior to The complainant’s alleged first protected disclosure.

It is accepted the 2014 Act states that the reasonable belief of the worker must be that the relevant information “tends” to show that an offence has been, is being or is likely to be committed or that a person has failed, is failing or is likely to fail to comply with any legal obligation other than one arising under a worker’s contract of employment or other contract whereby the worker undertakes to do or perform personally any work or services”.

                                [No other criteria set forth in section 5(3) of the Act can be relevant here.]

However, The Complainant cannot identify any offence that is being or is likely to be committed or that any person has failed or is likely to fail to comply with a legal obligation arising out of the matters he complains of in his email of the 27th November 2017. It must be recalled that the Industrial Relations Act 1990 (Code of Practice on Protected Disclosures Act 2014) (Declaration) Order 2015 S.I. No: 464 of 2015 makes it clear that personnel/employment grievances matters are not protected disclosures. Section 30 of the S.I. states:

“A grievance is a matter specific to a 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 organisations grievance procedure. A protected disclosure is where a worker has information about a relevant wrongdoing.”

As stated above, there is no information contained in the email of the 27 November 2017 tending to show any breach or likely breach of a legal obligation or wrongdoing. The word “likely” has a meaning and this has been considered by the UK EAT in a decision entitled Kraus v Penna Plc [2004] IRLR 260 where the Court held that to require more than a possibility or a risk that an employer might fail to comply with a relevant legal obligation the information disclosed should in the reasonable belief of the worker at the time tend to show that it is probable or more probable than not that the employer will fail to comply with a relevant legal obligation.

Simply put, the complainant’s claim must be dismissed under this heading also.

Further support for this, if such is even required, is to be found in the fact the Respondent’s comprehensive Whistleblowing Policy was not invoked by the complainant. An extraordinary aspect of the Complainant’s claim under the protected disclosures legislation is that he as, a qualified barrister and a compliance officer, did not seek to make an alleged protected disclosure pursuant to the Whistleblowing Policy. The Company operates a sophisticated and clear Whistleblowing Policy which was fully available to the Complainant had he genuinely wished to invoke it.

IF NECESSARY THE RESPONDENT RELIES ON SECTION 5(5) OF THE PDA

Further of note is section 5(5) of the PDA which the Respondent relies on here. Section 5(5) states: “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.”

The complainant held the position of compliance officer. In that position he was required to conduct field work in support of the Respondent’s compliance targets. The concerns identified by him in respect of delays in other members of the Respondent’s team providing him with information and an alleged lack of knowledge of the terms of an internal policy are matters which were the complainant’s function to identify but in any event did not consist of any act or omission on the part of the Respondent.

THERE IS NO EVIDENCE OF ANY UNFAIR TREATMENT

Entirely without prejudice to all of the foregoing, there is no evidence of any alleged unfavourable treatment of the complainant. While there is very scant information available to the Respondent in terms of what the complainant contends the Acts of penalisation are.

The Respondents’ performance appraisal of the complainant was entirely appropriate and supported by reference to his performance during the previous year. Due to his poor performance review he was not rewarded a financial pay rise for the coming year however this was not unique to the complainant. All employees who scored poorly in their performance reviews were similarly treated and none of those other workers are contending they had made protected disclosures (which is denied).

The decision of the Labour Court in Aidan & Henrietta McGrath Partnership v Monaghan PDD162 is however instructive. Observing that the 2014 Act was a new piece of legislation with relatively little case law, the Labour Court placed reliance upon the decision of the Labour Court in O’Neill v Toni and Guy Blackrock Limited [2010] 21 E.L.R. 1. Although that case was concerned with the Safety Health and Welfare Act, 2005, the Court was of the view that the provisions regarding penalisation were ‘broadly similar’ in both Acts:

   “…it is clear from the language of Section 27 of the 2005 Act that in order to make out a complaint of penalisation it is necessary for a complainant to establish that the detriment of which he or she complains was imposed “for” having committed one of the acts protected by Section 27(3) of the 2005 Act. Thus the detriment giving rise to the complaint must have been incurred because of, or in retaliation for, the Complainant having committed a protected act. This suggests that where there is more than one causal factor in the chain of events leading to the detriment complained of the commission of a protected act must be an operative cause in the sense that “but for” the Complainant having committed the protected act he or she would not have suffered the detriment. This involves a consideration of the motive or reasons which influenced the decision maker in imposing the impugned detriment.”

The complainant has provided extremely limited information in respect of the alleged detriment contended for by the Respondent. As such this is evidence that no such detriment existed.

CONSTRUCTIVE DISMISSAL CLAIM:-

Turning to The complainant’s constructive dismissal claim, this claim cannot succeed. The complainant did not raise any grievance or invoke any internal procedure to address any alleged complaints/ work place concerns despite the existence of a comprehensive procedure being in place. A copy of this procedure is exhibited.

The Respondent relies on the fact that the complainant failed to utilize its internal grievance procedures in advance of any decision to resign. In Conway .v. Ulster Bank Limited (UD474/1981) the Employment Appeals Tribunal found that an employee’s resignation was unreasonable in circumstances where he had not fully pursued the Bank’s grievance procedures. The tribunal found that an elaborate grievance procedure had existed but the employee did not use it. The tribunal therefore found that the employee had not acted reasonably in resigning first without having substantially utilised the grievance procedure in an attempt to remedy her complaints (a similar result befell the Claimant in Harold .v. St. Michael’s House [2008]19 E.L.R. 1).

The Respondent further relies on the decisions of the Employment Appeals Tribunal in Byrne v. Horwath Bastow Charleston Wealth Management UD 67/2014 and Ahmed v. Abbott Ireland Vascular Division UD 1221/2014 which confirm the necessity for an employee claiming constructive dismissal to have pursued the internal grievance procedure. The complainant has not only failed to do so but he has entirely failed to provide any evidence of any treatment upon which he can base his claim for constructive dismissal.

Of note is the fact that the complainant left work very shortly after he had his performance meeting with Mr. RC the Head of Compliance on 1 December 2017. He immediately made contact with a Solicitor who wrote to the Respondent within days (namely 8th December 2017) seeking a copy of the Respondents Protected disclosures/whistleblowing policy, performance management policy, grievance and disciplinary policy. These documents (which the complainant already had access to) were provided to his Solicitor on the 20th December 2017. The complainant returned to work on the 8th January 2018 and no grievance was raised by him.

By letter dated 5th January 2018 a detailed legal letter was sent to the Respondent by the complainant’s Solicitors complaining of, inter alia, detriment and alleged personal injuries. However there was no invocation of the Respondent’s internal grievance procedure. Rather he issued legal proceedings to the WRC on the 18th January 2018 and resigned as of the 5th February 2018.

By way of analogy, the EAT stated in the decision of Pungor v. MBCC Foods Ltd (UD584/2015)

“The employee was afforded the right of appeal, which she did not avail of. The employee has an obligation to exhaust the internal disciplinary process prior to seeking to enforce her rights externally. She has not satisfied her obligation and did not adduce any evidence that might justify her decision not to exhaust the internal process”

The EAT here expressly noted that an employee has an “obligation” to exhaust internal disciplinary and appeal procedures prior to lodging any unfair dismissal claims.

Similarly, in respect of the Liz Allen -v- Independent Newspapers (Ireland) Ltd [2002] 13 E.L.R. 84 case, the Employment Appeals Tribunal considered it was reasonable not to invoke the internal grievance process because the claimants recourse to same previously had given rise to totally unsatisfactory results:

“The Tribunal considers it reasonable for the claimant to have taken into consideration the manner in which her various complaints were dealt with from 1999 through to 2000 in arriving at her conclusion that she had essentially lost faith in what was being offered by way of investigation by the respondent in September 2000. She was entitled to do so because we accept that she had cause for complaint after June 2000. The Tribunal therefore finds the claimant's conclusion that she could have no confidence in the respondent to either properly or effectively address her grievances was a reasonable conclusion in all the circumstances. Moreover, the claimant did not act unreasonably in taking into consideration the likely effect on her health and well-being were she to remain in the work environment. In assessing the reasonableness of her decision in this regard the Tribunal accepts that the effect on her health and well-being was a concern she had prior to her resignation, a concern that had been communicated to the respondent in September 1999”.

No such circumstances pertain in this case and it was not reasonable for the complainant not to have recourse to the Respondent’s extensive and detailed grievance policies in circumstances where he had no reasonable cause to believe same would be ineffective in addressing his complaints.

Constructive dismissal is defined in section 1 of the Unfair Dismissals Act 1977 -2015 (the “UDA”) as:

“The termination by the employee of his contract of employment with his employer where the 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.”

In Berber -v- Dunnes Stores [2009] 20 E.L.R. 61, which did not consider UDA but rather whether a dismissal was wrongful at common law, the Supreme Court held the appropriate test was an objective one. Thus, the Supreme Court stated that in determining whether the Plaintiff had succeeded in his claim for wrongful dismissal he had to establish that there has been a repudiatory breach of the implied term of mutual trust and confidence in employment contract and the test requires that the conduct of both the employer and the employee be considered. Finnegan J in giving judgment for the Supreme Court stated the following:-

“There is implied in a contract of employment a mutual obligation that the employer and the employee will not without reasonable and proper cause conduct themselves in a manner likely to destroy or seriously damage the relationship of confidence and trust between them. The term is implied by law and is incident to all contracts of employment unless expressly excluded. The term imposes reciprocal duties on the employer and the employee”.

The Court went on to set down the following test:

1.The test is objective;

2. The test requires that the conduct of both employer and employee be considered.

3. The conduct of the parties as a whole and the accumulative effect must be looked at.

4. The conduct of the employer complained of must be unreasonable and without proper cause and its effect on the employee must be judged objectively, reasonably and sensibly in order to determine if it is such that the employee cannot be expected to put up with it.

It is submitted the above extracts from the judgement of Finnegan J represents the approach the Workplace Relations Commission must take to addressing this case. That is to say, the Adjudicating Officer must look objectively at whether there has been a repudiatory breach or whether the employer has engaged in conduct which made it reasonable for the employee to terminate his contract. It is respectfully submitted that no such evidence is available here.

The complainant singularly fails to identify any element of the Respondent’s actions which repudiated the contract or suggested that it no longer wished to be bound by his contract of employment.

THE TRIBUNAL CAN AND SHOULD TAKE INTO ACCOUNT THE APPLICANT’S UNLAWFUL BEHAVIOUR

The Respondent reserves the right to rely on the unlawful conduct engaged in by the complainant post his decision to resign his position.

The Respondent has received no information from the complainant on the issue of his loss.

As stated above, the Respondent fully reserves its position in respect of this matter.

The complainant is alleging that on three occasions between June,2017 and November 2017 he made protected disclosures, which disclosures lead to his constructive dismissal. The complainant specifically states that he is relying on Section 5 (3) (b) i.e. 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,

S5. (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—

(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,

(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.

In order for the complainant establish that he comes within the legislation he must show that he had a ‘reasonable belief’ that a ‘wrongdoing’ has occurred or is ‘likely’ to occur in the context of his employment. He identifies the wrongdoing in all three categories of claim as those envisaged by Section 5(3)(b) of the Act.

The complainant categories the alleged ‘wrongdoings’ as:

-          The gifts and hospitality policy

-          The compliance monitoring review report

-          Compliance team structure.

THE GIFTS AND HOSPITALITY POLICY

In an e-mail exchanged between the complainant and Mr. RC on 20.06.2017 it is clear that the complainant wanted to have his name removed from the final draft, was unhappy about Senior Managements knowledge of policies and their tardiness is getting certain information to him. He stated “While Senior Management were familiar with the existence of both policies they were not familiar with the details contained within each policy and consequently, were not familiar with their obligations. This observation was established on telephone conversations and email exchanges within members of senior management. Any documented observation should highlight the fact that senior management were not familiar with the details of the policy and further, additional training should be provided to senior management.” “During the performance of this review, certain members of senior management did not respond in a timely manner to the fieldwork request.”

He goes on to say:

“ I am happy for you to distribute the report containing your wording with my name removed”.

I am satisfied that the content of the communication between the respondent and the complainant on the 20th June, on this issue do not disclose any ‘relevant information’ which could have allowed the complainant to form a ‘reasonable belief’ in relation to a wrongdoing. What they disclose are concerns the complainant had with the wording of the report and senior management’s lack of knowledge and cooperation. Lack of cooperation and a lack of knowledge of internal policies whilst concerning, do not meet the threshold of the act. The raising of a concern does not amount to a breach under the act, Everett Financial Management Ltd v Murrell EAT 552/02 2002.

THE COMPLIANCE MONITORING REVIEW REPORT of INVESTOR SERVICES ANTI FRAUD MEASURES.

This particular category is probably the most contentious category of the within claim. The Respondent, due to the complainant’s behaviour was forced to issue High Court injunction proceedings and have secured an interim order in relation to same.

The complainant alleges in his claim form and again during the course of the hearing states that his work, in preparation for this review report was met with ‘extraordinary levels of non-cooperation and obstruction by Investor Services’ in that documents, specifically call logs, were not provided to him despite requesting them. He spoke with Mr. RC about the issue. The complainant concluded from that conversation that no further information would be made available to him.   He informed Mr RC he would complete his report and would include in it that Investor Services did not co-operate with him in the preparation of his review. I note from e-mail exchanges between the parties that all of the outstanding information/documentation was made available. The complainant seems to take issue with the fact that Mr. RC had the final say on the wording of the report. However in an e-mail dated the 3rd October, 2017 he seems to acknowledge that Mr. RC did have the final say, “Hi RC, Many thanks for the update. I will await the final version of the report before determining the next steps, Thanks …..”

I can find no documentation to support the complainant’s evidence that he made a ‘protected disclosure’. He didn’t invoke the whistleblowing policy. He didn’t invoke the grievance procedure. He didn’t set out anywhere that he a reasonable belief in relation to a wrongdoing. His annoyance and concerns about his work in preparation of the report being hindered by various members of staff do not meet the threshold of the Act.

THE COMPLIANCE TEAM STRUCTURE.

The complainant set out his concerns about the structure of the compliance team in an e-mail to Mr. RC on the 27th November, 2017. He expressed dissatisfaction about the creation of a new role within that team, which he says usurped his authority within that team. He interpreted it as a demotion. He requested that his role be renamed, so that it would equal that of the director’s role, in terms of authority.

I can find no information in the email of the 27th November, 2017 that tends to should any breach or any likely breach of a legal obligation or wrongdoing. It is nothing more than a personal grievance that could have been dealt with under the grievance procedure.

I find that the complainant grievance as set out in the aforementioned e-mail does not meet the threshold required in the Act.

CONSTRUCTIVE DISMISSAL ADJ 13909

The claim is one of constructive Dismissal pursuant to Section 1 of the Unfair Dismissal Act 1977.

Section 1 of the Unfair Dismissal Act defines constructive dismissal as:

“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 the 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”

7.—(1)

Where an employee is dismissed, and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following the rights commissioner, the Tribunal or the Circuit Court, as the case may be, considers appropriate having regard to all the circumstances:

(a) re-instatement by the employer of the employee in the position which he held immediately before his dismissal on the terms and conditions on which he was employed immediately before his dismissal together with a term that the re-instatement shall be deemed to have commenced on the day of the dismissal, or

(b) re-engagement by the employer of the employee either in the position which he held immediately before his dismissal or in a different position which would be reasonably suitable for him on such terms and conditions as are reasonable having regard to all the circumstances, or

(c) payment by the employer to the employee of such compensation (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17 of this Act) in respect of any financial loss incurred by him and attributable to the dismissal as is just and equitable having regard to all the circumstances.

The burden of proof, which is a very high one, lies on the complainant. He must show that his resignation was not voluntary. As is set out in Western Excavating ECC Limited –v- Sharp, the legal test to be applied is “an and / or test”. Firstly, the tribunal must look at the contract of employment and establish whether or not there has been a significant breach going to the root of the contract.

“if the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any further performance”

If I am not satisfied that the “contract” test has been proven then I am obliged to consider the “reasonableness” test

“The employer conducts himself or his affairs so unreasonably that the employee cannot fairly be expected to put up with it any longer, then the employee is justified in leaving”

Furthermore, there is a general obligation on the employee to exhaust the Company’s internal grievance procedures as is set out in McCormack v Dunnes Stores, UD 1421/2008:

“The notion places a high burden of proof on an employee to demonstrate that he or she acted reasonably and had exhausted all internal procedures formal or otherwise in an attempt to resolve her grievance with his/her employers. The employee would need to demonstrate that the employer's conduct was so unreasonable as to make the continuation of employment with the particular employer intolerable.”

The importance of exhausting the internal grievance processes was also highlighted in Terminal Four Solutions Ltd v Rahman, UD 898/2011:

“Furthermore, it is incumbent on any employee to utilise all internal remedies made available to him unless she can show that said remedies are unfair”

The complainant is a highly qualified individual who together with numerous graduate and post graduate qualifications has a BL degree. He was fully aware of the respondent’s grievance policy however despite being critical of senior management for their lack of knowledge of certain policies, he failed to invoke the policy.   There is a legal obligation, with very limited exceptions, on the complainant to exhaust the internal process prior to bring the matter to an external body such as the WRC. It is only in exceptional circumstances where the complainant can demonstrate that the invoking of the grievance procedure would have been a futile exercise that I could exercise my discretion to overlook their failure to do so. That situation does not arise in this case.

Furthermore, I must consider not only the conduct of the respondent but that of the complainant. The complainant when crossed examined admitted that when he was on sick leave in December 2017 he went straight to his solicitor. His solicitor made contact with the respondent looking for   various policies. He was furnished with those on the 20th December, 2017. He spent his time on sick leave interviewing for another job and had in fact secured that job when he returned to the respondent. He returned to work in early January and spent his time printing of documentation knowing that he was going to resign. That action resulted in the complainant being restrained by Order of the High Court dated the 28th February,2019 from using any of the information he took from the respondent and to return same to the respondent. He also filed his claim with the WRC on the 18th January but did not resign until the February. All the while he was gathering information belonging to the respondent which I have no doubt was for an underhanded purpose.

The complainant made much of the respondent alleged “wrongdoings”. However, I note that he had ample opportunity from mid - 2017 to report the matters to the Central Bank but did not do so until April, 2019 two weeks prior to him being notified of this hearing date, despite there being no change in the factual situation from July,2017 to April,2019.

Having considered the evidence carefully I find that there was no breach of the complainant’s contract. Furthermore, he failed in his obligation to exhaust the internal process prior to resigning, his behaviour was underhanded and disingenuous and that it was entirely unreasonable for him to resign from his position.

The complaint fails.

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.

The complaint fails.

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.

The complaint fails