PDD195

Background

The Complainant commenced employment with the Respondent on the 15th May 2017. The offer of employment was subject to, attendance at induction training, the provision of two verifiable references and the completion of a Driver Declaration form. It is the complainant’s case that she made a protected disclosure on the 29th/ 30th May 2017 and that her employment was terminated on the 7th June 2017.

The Respondent disputes that a protected disclosure was made. It is their case that the offer of employment was withdrawn as issues had arisen in relation to the Driver Declaration form, the Complainant’s references and the fact that the Complainant was on unauthorised absences on the 6th and 7th June 2017.

Complainant’s case

The Complainant completed her training and was placed in the field working with another colleague from Monday the 22nd May 2017. While working with this colleague she noticed that some of the practises being followed were not in line with what had been outlined at the induction training. It is the Complainant’s case that she raised these issues verbally and then in writing with the National Sales Manager. It is the Complainant’s case that in passing on Friday the 27th May 2017 she mentioned to her co-worker that she had accumulated a number of penalty points on her driving license.

It is the Complainants case that she was called to a meeting on Monday 29th May 2017 with her line manager who raised the issue of her penalty points and the fact that she had not completed that section of her Driver Declaration form. The Complainant informed her line manager that the failure to complete same had been an oversight and outlined the up to date position in relation to her penalty points. The manager instructed her to complete a new Driver Declaration form. On the 1st of June the Complainant was brought to a meeting with the National Sales Manager and her Line Manager to discuss her disclosures email which they went through. At the same meeting the Respondent informed the Complainant that they were still waiting on her to forward details of her referees, The Complainant immediately gave them the details of two referees.

On the 6th June then Complainant attended a team meeting in Limerick and was given a new area. The Line Manager informed her that she would meet her later that day to discuss her new area. It is the Complainant’s case that she had to leave the work area early to bring her mother to the Hospital. In relation to the 7th June the Complainant does not dispute that she did not turn up for work. However, she had emailed he line manager in the early hours of the morning to advise that she was only home from the hospital.

Respondent’s case

It is the Respondent’s case that the Complainant did raise issues which they investigated, and the outcome was that a member of staff received a disciplinary sanction. However, they don’t necessarily accept that it was a protected disclosure. It is the Respondent’s position that either way that issue had no impact on the decision to withdraw the job offer from the Complainant.

It is the Respondent’s case that they had a number of concerns in relation to the Complainant arising from her failure to correctly complete the Driver Declaration form, her failure to supply referee’s at the commencement of her employment as requested, an issue with one of the referees who they tried to contact and other work related issues including the Complainant texting her line manager late at night.

It is the Respondent’s case that the final straw was when the Complainant left the field early on the 6th of June 2017 and then did not turn up for work the next day the 7th June 2017. It is their case that on the 6th Of June the complainant had initially stated that she needed to return home as she had forgotten her charger for her I Pad and would return to work. It was only when she failed to turn up for a meeting with her line manager that she mentioned having to bring her mother to hospital. It is the Respondent’s case that the role the Complainant was carrying out requires the ability to work on your own and that by the 7th of June they had come to the conclusion that the complainant was not a good fit. At a meeting with her Line Manager on the 7th June 2017 the Complainant was informed that in line with her contract the job offer was being withdrawn. The reasons for the withdrawal of the offer of employment were outlined to the Complainant. An email was sent on the 9th June setting out the three grounds on which the offer of employment had been withdrawn.

The law

• Protected disclosures

  5. (1) For the purposes of this Act “protected disclosure” means, subject to subsections (6) and (7A) andsections 17and18, a disclosure of relevant information (whether before or after the date of the passing of this Act) made by a worker in the manner specified in section6 , 7 , 8 , 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.

  The Act goes on to say at section 12;

  • 
    (1) An employer shall not penalise or threaten penalisation against an employee, or cause or permit any other person to penalise or threaten penalisation against an employee, for having made a protected disclosure.

    (2) Subsection (1) does not apply to the dismissal of an employee to whomsection 6(2)(ba) of theUnfair Dismissals Act 1977applies.

    (3)Schedule 2shall have effect in relation to an alleged contravention of subsection (1) .

    (4) Subsection (3) does not apply in relation to the penalisation of an employee if the employee is within paragraph (d) ofsection 2(1) of theUnfair Dismissals Act 1977.

    (5) Any person who, on examination authorised under paragraph 3(1) ofSchedule 2, wilfully makes any material statement which the person knows to be false or does not believe to be true commits an offence and is liable on summary conviction to a class A fine or imprisonment for a term not exceeding 12 months or both.

    (6) ………

Having carefully considered the submissions of the parties the Court is of the view that the disclosure made by the Complainant meets the requirements of s5 of the Act . It therefore falls to the Court to consider whether or not the Complainant was penalised for having made such a protected disclosure.

As this Court pointed out in O’Neill v Toni and Guy Blackrock Limited [2010] E.L.R. 21 it is necessary for a Complainant to show that the detriment of which he or she complains was imposed “for” having committed a protected Act. This suggests that where there is more than one causal factor in the chain of the 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.

In this case the detriment complained of is dismissal. The Respondent in its submission is clear that the dismissal arose from issues arising from the Complainant’s compliance in relation to documentation required to confirm her employment and issues arising in terms of her general suitability for the job and not linked in any way to her protected disclosure. Having carefully studied the submitted documents and listened to the oral arguments on the day it appears to the Court that applying the “but for” test to the dismissal that the dismissal would have arisen even if she had not made a protected disclosure. In those circumstances the Court must find that the dismissal was wholly unrelated to the protected disclosure and therefore no detriment in line with s 12 of the Act arises.

For the reasons set out above the Court is satisfied that no penalisation occurred. The Complainant’s appeal cannot succeed and is dismissed. The decision of the Adjudication officer is affirmed.

The Court so determines.

Signed on behalf of the Labour Court



Louise O'Donnell
29th May 2019______________________
SCDeputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Sharon Cahill, Court Secretary.