ADJ-00016368

Complainant

Respondent

Anonymised Parties

A Human Resources Manager

A Hotel Group

Representatives

Aoife McFaddenIBEC

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00021249-001

21/08/2018

The complainant in this case was a HR Manager assigned to two of the respondent’s Dublin hotels.  She was dismissed in April 2018 following an investigation into gross misconduct.  The parties were in dispute about certain critical elements of this complaint.

The Name of the Respondent

For the respondent, Ms McFadden said that the complainant named the incorrect employer on her complaint form.  The complainant disputed this and claimed that the employer she named is on the headed paper of her contract of employment, on disciplinary letters and on the letter terminating her employment.  She also claimed that she signed an employee handbook with this name.  Finally, she claimed that the company named by Ms McFadden as the correct respondent is not indicated on her P45 or her P60.

Date of Commencement

A signed copy of the complainant’s contract of employment was submitted at the hearing.  From this, it appears that the complainant commenced employment on Monday, April 24^th 2017.  On her claim form, she said that she started on Monday, April 17^th, when she called in to one of the hotels to meet the outgoing HR Manager.  In correspondence following the hearing, she said that she started on Tuesday, April 18^th, when she went to meet the general manager and another person to go through the HR system.  In her evidence at the hearing, the complainant said that she was in each hotel for a number of hours on both days.  She said she didn’t think she got paid for these days.  She said that the general manager said that she could have two extra days’ holidays in recognition for coming in before her official start date. 

Date of Termination

From the P45 submitted by the respondent, it appears that the complainant was dismissed on April 10^th 2018.  In the complaint form that she submitted to the WRC, she indicated that she was dismissed on that date.  It appears that this is the day that the complainant was sent an undated letter of dismissal by e mail.  However, in correspondence to the WRC after the hearing, the complainant argued that her dismissal was not finalised until the outcome of her appeal on May 2^nd.  She also argued that her untaken annual leave should be added to her service, although she did not specify how many days were owed to her on the date of dismissal.

The Making of a Protected Disclosure

On her complaint form, the complainant alleges that, on July 20^th 2017, she made a protected disclosure to her general manager about employees who, she claims, did not have up to date work permits.  In November 2017, she said that she made another protected disclosure regarding other matters which will be considered later.  Her case is that her dismissal arises from having made these disclosures and is therefore, within the remit of section 6(2)(ba) and 6(2)(c) of the Unfair Dismissals Act, as amended by the Protected Disclosures Act 2014.  On this basis, she claims that she is not required to have completed one year of service to make a complaint of unfair dismissal.

The respondent’s position is that the complainant did not make any protected disclosures and that she was dismissed following an investigation into an incident of gross misconduct.

For convenience, I will refer to the named respondent as “Company A” and to the entity that the respondent argues was the complainant’s employer as “Company B.”  A further complication arises from the fact that the hotels where the complainant worked had a different name altogether.  I will refer to the hotels as “the Rose Hotels.” 

The Contract of Employment

In an e mail to the WRC on November 8^th 2018, the day before this hearing, the complainant said, “my contract of employment is on Company A headed paper.”  On November 14^th, the complainant submitted additional correspondence in support of her contention that she has correctly named her former employer.  In this correspondence, she claimed that she didn’t receive a contract of employment.

The evidence presented at the hearing shows that a contract of employment was drawn up and signed by a senior manager on April 12^th 2017 and by the complainant on April 24^th.  It is my view that a contract was issued to the complainant, and that she signed this contract, probably on her first day at work on April 24^th 2017.  I have formed this view because, the complainant herself wrote to the WRC stating that she received a contract.  At the hearing, she said that she signed several policy documents on April 24^th 2017 and it is my view that, in all likelihood, she signed her contract on the same day. 

The first line of the contract states,

“I am pleased to confirm your employment with Hotel B, trading as (the Rose Hotels) (hereinafter called the company) on the following terms and conditions…”

The Complainant’s P45

The complainant’s P45 gives the registered number of the employer.  The P35 which was also submitted in evidence, has the same registered number, which is the registered number of Company B.  There is no reference to the name of Company B on the P45 and the complainant would not have had sight of the P35.  The respondent’s case is that, as a HR professional, the complainant should have known, from the employer’s registered number, that her employer was Company B.

The Respondent’s Position on the Issue of the Correct Name of the Employer

In her submission following the hearing on November 9^th 2018, Ms McFadden argued that, as a HR Manager in the Rose Hotels, the complainant had to create and upload contracts of employment for new joiners and, from these documents, she would have known that the employer of the new recruits, and by extension, her employer, was Company B.  Details of contracts uploaded by the complainant were included in the respondent’s supplementary paper.  These contracts have the same first line as the first line in the complainant’s contract which states, ““I am pleased to confirm your employment with Hotel B, trading as the Rose Hotels…”

A copy of the complainant’s P60 was included in the supplementary submission and this states that the employer’s name is the Rose Hotel. 

Legislative Provisions

In her submission, Ms McFadden referred to paragraph one of the WRC Procedures in Investigations and Adjudication of Employment and Equality Complaints.  Here, a complainant is advised that,

“The complaint form should be carefully filled out, giving the correct legal name and address of the employer / respondent…it is vital to check the correct legal name.”

The advice in this document is prescriptive and intended to avoid preliminary issues such as the one we are currently engaged in.  Where an incorrect employer is named on a form, and where the respondent objects to a complainant’s application to amend it, section 39 of the Organisation of Working Time Act 1997 (“the OWT Act”) provides that “a relevant authority,” can amend the form so that the correct employer is named.       

Ms McFadden referred to this section of the OWT Act and argued that, as the Protected Disclosures Act 2014 is not included in the statues listed in section 39, that I, as the adjudicator, and the “relevant authority,” have no authority to amend the name of the respondent.  As the complaint under consideration is submitted the Unfair Dismissals Act, I do not accept this argument and I am satisfied that I have authority to amend the name of the respondent, if I find that it is appropriate and reasonable to do so.

Section 39(4)(b) of the OWT Act provides that where a complainant has incorrectly named a respondent and where “the said misstatement was due to inadvertence,” then, he or she may apply to have the complaint heard against the correct respondent.  To permit the complainant to have her complaint heard, I must be satisfied that to do so would not “result in an injustice being done to the proposed respondent.”  This section of the OWT Act therefore provides that two criteria must satisfied before I can amend the name of the respondent.  The first is that the incorrect respondent must have been named due to inadvertence and the second is that, by amending the name of the respondent, I must ensure that an injustice is not done to the proposed respondent.

For Company A, Ms McFadden claims that the failure to name the correct respondent was not due to inadvertence, because the complainant had knowledge from her contract of employment and other documents who her employer was.  The dictionary definition of “Inadvertence” means “oversight,” “heedlessness” or “a mistake.”  At the hearing on November 9^th 2018, the complainant insisted that Company A is her former employer.  In correspondence following the hearing, she submitted a copy of the outcome of her appeal against her dismissal which is on Company A headed paper and is signed by the Group Head of Financial Reporting, Treasury and Tax of Company A.  It is apparent to me however, that the complainant was employed by Company B, which is part of a portfolio of hotels owned or managed by Company A.  Her contract states clearly that she was employed by Company B.

In my view, there is no other explanation for naming the incorrect respondent other than that it was an oversight and a mistake, due to the connection between Company A and B and the correspondence issued to the complainant by Company A.  I am therefore satisfied that the complainant named the incorrect respondent due to inadvertence and she has met the first criterion for me to consider amending the name of the respondent.

The second criterion I must consider is if, by amending the name of the respondent, would an injustice be done to Company B?  Company B is one of a group of companies owned or managed by Company A.  As they are connected legal entities, the amendment of the name of the respondent does not introduce a new or independent party to these proceedings.  When the management of Company A was notified of the complaint of unfair dismissal, it was apparent to them that the complaint was against Company B.  There is no element of surprise and no advantage taken of Company B in a decision to amend the name of the respondent and I am satisfied that to do so would not result in an injustice. 

Precedents

I note the reference to case law in the respondent’s supplementary submission:

O’Higgins v University College Dublin [2013] 21 MCA;

Sylvia Wach v Travelodge Management Limited, EDA1511;

Jeevanhan Al Tambraga v Orna Morrissey and Killarney Avenue Hotel, UD36/2011

I have considered these precedents and, for the following reasons, I find that they do not support a decision not to amend the name of the respondent:

The complainant’s oversight and mistake amount to a technical error, as she was employed by a company owned or managed by the incorrectly named respondent.  It was not unreasonable for her to make this mistake due to the involvement of the named respondent in her dismissal.

No injustice arises to Company B by the amendment of the complaint form, as Company A and B are closely associated and I am satisfied that the relevant senior managers in Company B were always on notice that a complaint of unfair dismissal had been lodged.

The complainant was dismissed on April 10^th 2018 and she lodged her complaint on August 21^st 2018.  A decision to amend the name of the respondent means that a complaint is lodged against Company B on the date of this decision, which is in excess of the time limit of six months permitted under section 6 of the Workplace Relations Act 2015.  However, section 6(8) provides that a complaint may be referred after the expiration of the standard period of six months from the date of dismissal, “but not later than 6 months after such expiration” if the failure to present the complaint within the statutory timeframe was due to “reasonable cause.”  I am satisfied that my decision to amend the name of the respondent, arising from the hearing on November 9^th 2018 and the supplementary submissions from both parties, satisfies the “reasonable cause” test provided for in the legislation.

In accordance with the powers vested in me by section 39 of the Organisation of Working Time Act 1997, I have decided to grant leave to the complainant to have her complaint of unfair dismissal adjudicated upon against her former employer, referred to in this document as “Company B,” which is not the respondent named on her complaint form.

I accept that the complainant may have attended at the hotels to which she was assigned as a HR Manager for a few hours on two days before her official start date; however, there was no obligation on her to do so.  She was not under contract on those days and she was not paid for any work carried out.  I am satisfied therefore that the complainant’s first day at work was April 24^th 2017.

Having examined the correspondence submitted by the complainant, I am satisfied that her employment was terminated on April 10^th 2018.  In respect of holidays, it is settled law that holidays not taken at the date of dismissal, cannot be added on as service.  In this respect, I note the findings of the EAT in Maher v B&I Line, UD 271/1978 and Twomey v Office Supplies Limited, UD 864/1994. 

The complainant argues that her employment was terminated on May 2^nd 2018, which is the date she received the outcome of her appeal against her dismissal.  In this regard, I refer to the Employment Appeals Tribunal (EAT) case of Tom O’Neill v Bank of Ireland, UD 425/91.  Mr O’Neill’s case is slightly different to the case under consideration here as he had a number of years of service and the issue in dispute was whether he submitted his complaint to the EAT within six months of the date of his dismissal.  He argued that the effective date of his dismissal was the date when his appeal against his dismissal was not upheld.  The EAT disagreed and determined that his complaint was not submitted in accordance with the time limit set out in the Unfair Dismissals Act. 

I have considered this matter and I have concluded that the complainant commenced employment with Company B on April 24^th 2017 and she was dismissed on April 10^th 2018.

I have decided that the complainant was employed by the company referred to above as “Company B.”  I have therefore amended the name of the respondent on this decision.

We have established that, on April 24^th 2017, the complainant commenced employment with the respondent as a HR Manager and she was dismissed almost a year later, on April 10^th 2018.  Her case is that she was dismissed because on July 20^th and November 9^th 2017, she made protected disclosures to the respondent’s Group HR Manager.  Section 6(2)(ba) of the Unfair Dismissals Act 1977, as amended by the Protected Disclosures Act 2014, provides that,

Without prejudice to the generality of sub-section 1 of this section, the dismissal of an employee shall be deemed, for the purposes of this Act to be an unfair dismissal if it results wholly or mainly from …the employee having made a protected disclosure.

The complainant is therefore not required to have completed one year of service to have her complaint of unfair dismissal adjudicated upon.  Although the burden of proof is on the employer to show that the complainant’s dismissal was not unfair, I have decided to consider to complainant’s position first, and then to examine the respondent’s case that she did not make a protected disclosure.  Before considering the positions of the parties, it may be useful to set out the chronology of the events that led to the complainant’s dismissal.

April 24^th 2017:  The complainant commenced as HR Manager for two hotels and she had dealings with two General Managers who I will refer to as “GM1” and “GM2.”

July 20^th 2017:  The complainant raised her concerns with the Group HR Manager about an illegal employee.  This resulted in an altercation with GM1 which was resolved in early August 2017.

October 23^rd 2017:  The complainant’s probation was extended by three months due to concerns about the delivery of training and the management of training records.  The issues of concern to the management were the fact that training records were not complete and training had not been done.  The managers referred to a “mini version” of a manual handling programme that the complainant was delivering which was not compliant with their requirements.  Following this meeting, the complainant had a one to one meeting with the Group Learning and Development Manager who authorised a course for the complainant to attend on manual handling.  In her evidence at the hearing, the Learning and Development Manager said that the complainant was very upset after this meeting. 

November 2^nd 2017:  The complainant went on sick leave and on November 5^th, she submitted a complaint of bullying and harassment by GM2.

November 9^th 2017:  To investigate her grievance against GM2, the complainant had a meeting with the Group HR Manager.  At this meeting, she revealed that, while she was out sick, she telephoned a former employee, “G,” who had left before the complainant started in her role.  The complainant said that she phoned G to ask her why she left and that G told her that it was because of GM2.  G gave evidence at the hearing and she said that, following her resignation in April 2017, she started in a new job in the Group’s head office.  She said that the complainant, who she didn’t know and had never met, phoned her on October 31^st and November 8^th 2017 seeking permission to pass on her details in support of an allegation of bullying and harassment about GM2.  In the phone call on November 8^th, G said that the complainant asked if she could pass on G’s name to the investigating manager.  G said that she told the complainant that she didn’t want to be involved and she told her not to contact her again.

January 26^th 2018:  The outcome of the investigation into bullying and harassment found that, of the 21 allegations made by the complainant, 17 were unfounded and three were considered to be inconclusive.  The final complaint was considered by the investigators to be unfounded and to have been made maliciously.  The investigating manager recommended that the complainant’s submission of this grievance be investigated in accordance with the company’s disciplinary policy.

March 7^th 2018:  The complainant attended a meeting to investigate the finding that she had submitted a malicious complaint against her manager.  At the meeting, the complainant was asked why she contacted the former employee, G, and she replied, “I heard she left because of (name of line manager) so I contacted her.”

March 23^rd 2018:  The respondent’s note of the disciplinary meeting held to address this matter shows that the complainant said that she contacted G on the pretext of carrying out an exit interview.  She also said that she contacted two other former employees, but subsequently said that she only contacted G.

April 9^th 2018:  The Group Training and Development Manager headed up the disciplinary investigation and she wrote to the complainant to inform her that her employment was terminated as a result of gross misconduct.

April 23^rd 2018:  The complainant appealed against the termination of her employment, but on May 2^nd, she was informed that her dismissal was upheld.

On the form she submitted to the WRC on August 21^st 2018, the complainant said that, in July and November 2017, she made disclosures to the Group HR Manager concerning the following:

On July 20^th 2017, she informed the Group HR Manager that GM1 recruited a person knowing that he did not have a work permit.  She alleged that GM1 paid this individual in cash and hid him from her by putting him on the roster when she was not on the premises.

On November 9^th 2017, the complainant attended a meeting to discuss her complaint of bullying by her line manager.  At the meeting, she brought up the problem of the illegal employee again and she said that GM1 had taken on three other people without work permits.  At the same meeting, the complainant said that she made a protected disclosure about the poor standard of hygiene in one of the hotel group’s kitchens.

In the form which she submitted on August 21^st 2018, the complainant said that she made a further protected disclosure regarding a person staying in one of the hotels under Dublin City Council’s emergency accommodation scheme for homeless people.  The complainant said that the room where this person stayed was beside the HR office.  She complained that the guest “smoked drugs” that she had parties and used candles in the room and left her children on their own in the room.  The complainant said that prior to the homeless person living on the room in November 2017, other homeless people had stayed there and that “it was not safe to have the guests staying so close to the HR office.”

In correspondence received by the WRC on November 22^nd 2018, the complainant said that in addition to these matters, she informed the Group HR Manager on November 9^th 2017 that a chef who had a drink problem was living in a house adjacent to the hotel and that in her view, this was a safety risk.  She also said that GM1 employed his 13-year-old grand-daughter to work in the food and beverage department in his hotel.

In a document submitted at the hearing of this complaint on February 18^th 2019, the complainant said that when she was on holidays, GM1 rostered a HR intern student to work in the accommodation department of the hotel.  In this submission, the complainant also referred to a person who was absent following an injury at work who was paid incorrectly.  She said that this person was rostered to work at night and a risk assessment was not carried out to ascertain his suitability for night work.  Referring to another alleged protected disclosure, the complainant said that the lift in one of the hotels wasn’t working.  Never made anyone aware of this  She also referred to an incident in which a hotel guest was bitten by a long-term resident at the hotel.  Happened before she joined Finally, she referred to an occasion when a guest’s medication was stolen while she was asleep.  

The complainant said that her reports of alleged protected disclosures were “made light of.”

In support of her position, she referred to the following legal precedents:

Clarke and Dougan v Lifeline Ambulance Services [2018] ELR 210

In this case at the Circuit Court, the appellants made an application for continuation of their wages while waiting to have their claims of having made protected disclosures heard at the WRC.  This case is somewhat different to the case under consideration here, because, before he concluded on the matters before him, Mr Justice Comerford found that the appellants had made out a case that they had made protected disclosures to the Revenue Commissioners.

Catherine Kelly v Alienvault Ireland Limited (unreported November 2016)

At the Circuit Court in Cork, Ms Kelly won the right to interim relief pending the hearing of her complaint of unfair dismissal for making a protective disclosure.

Aidan and Henrietta McGrath Partnership v Monaghan, PDD [2017] ELR 8

In this case, the Labour Court confirmed that, to succeed in a complaint of penalisation under the 2014 Act, the claimant must establish that a protected disclosure has been made and that discrimination has occurred.

The respondent’s position is that the complainant was dismissed on April 10^th 2018 because she contacted a former employee on the pretext of carrying out an exit interview, but with the intention of getting information to support her grievance about her line manager.  Her dismissal followed an investigation meeting and a disciplinary hearing on March 23^rd 2018.  On May 2^nd 2018, the decision to dismiss her was upheld on appeal.  For the respondent, Ms McFadden said that the complainant was dismissed because of a serious breach of trust in her as a HR Manager and her dismissal was carried out in accordance with the company’s disciplinary procedures.   

The following is a summary of the respondent’s position regarding the matters that the complainant reported to them and which she argues were protected disclosures.

Report about Illegal Employees

In her evidence at the hearing, the Group HR Manager recalled a telephone call from the complainant on the evening of Thursday July 20^th 2017.  She said that the complainant advised her about an employee working in one of the hotels without a valid work permit. 

In their book of papers submitted at the hearing, the respondent produced a copy of an e-mail that the Group HR Manager sent to the complainant on Friday, July 21^st 2017, following this telephone call.  The Manager says:

“Thanks for your call last night and for looking after the issues we discussed.  Could you provide me with the detail behind the two matters?

I would like to see a copy of the rosters where the over-payment was made to one employee and also the visa information on (name of employee), how long his visa was out etc.

Do you have a clocking report for the employee who was receiving the over-payment?

Could you advise when you noticed this and the sequence of events?  Do you have anything in writing?

I would appreciate if you could send over anything you have on Monday morning.”

On July 28^th, the complainant wrote to the Group HR Manager to inform her that the foreign employee that she had concerns about was at work that day and that he produced a copy of a “Stamp 2” visa, which is not valid for employment.  The Group HR Manager replied 15 minutes later and said that the complainant was correct and that, “under no circumstances” can this employee be at work.  She instructed the complainant to speak with him and to write to him to explain that the hotel would be happy to have him back if he produces a valid visa.  She also questioned who it was who asked this employee to work in the hotel.

On Monday July 31^st, the complainant wrote to the Group HR Manager to let her know that she had followed her instructions but that GM1 was “extremely annoyed” and called her “a stupid girl.”  She said that GM1 had gone back on his word, as he had said that he wouldn’t have the illegal employee working in the hotel any more, and then he went ahead and put him on the roster.  The complainant set out her views to the Group HR Manager:

“(GM1) has acted illegally and this to me is very serious.  I cannot work with a Manager that feels that this is ok to do especially at a GM level or any level.  People can make a mistake, I understand this.  This is not a mistake that was made it was illegal and (GM1) was well aware of this.”

I would like to know what the next stage is here … as I feel very strongly about the illegal part of this situation.

You can be fined up to 250,000 for this and 10 years in prison worst case.

Thank you for your support and help last week.”

The respondent’s book of papers shows that the Group HR Manager contacted the complainant the next day to discuss this issue.  The complainant had a meeting with GM1 on Wednesday, August 2^nd and on August 8^th, she wrote to the Group HR Manager to let her know that the meeting went well, that GM1 had “apologised for his behaviour” and she said, “we can move on from that Friday now.”

On August 9^th, the Group HR Manager wrote to the complainant and asked her to set up a process for her and GM1 to sign off on new employees.  In her e-mail to the complainant, the Group General Manager said, “I’ll pick up with him on the back end as I said this was something that I wanted in place going forward.”

Sometime between August 9^th and 16^th, the complainant had a meeting with the two GMs and two other managers about recruitment and payroll.  In an e-mail on August 16^th on the subject of “Payroll” at the two hotels where she worked, she sets out the process for dealing with new employees, where she and the GMs will sign a new employee form.  Referring to the payroll process, the complainant says,

“To keep us all safe and our employees.  I will check (the name of the payroll programme) for the following each week:

Employee breaks

Employee hours of work (not working over 48 hours constant ok for season or special occasions short staff etc)

Employees GNIB (meaning “Garda National Immigration Bureau”)

Employee Age (young employees)

GMs and HODs (meaning “Heads of Departments”) can I also ask you to keep an eye on this also just to ensure we are protected from an Employer point of view and doing our best for the business and our Employees.”

I will send an e-mail to all the HODs in both hotels today.  I will arrange training with them all to ensure in September they are all happy with hours, bank holidays, breaks etc.)”  

Setting out the respondent’s position on this matter, Ms McFadden said that it was the responsibility of the complainant to identify risks to business delivery and to ensure that these risks are controlled and mitigated.  By contacting the Group HR Manager about the illegal employee, the complainant was doing her job.  The Group HR Manger supported her decision to raise this as a risk and she agreed that the employee identified by the complainant as an illegal employee should be sent home.

The fact that the complainant raised this matter again in November 2017 must, according to the respondent, be seen in the light of the e-mail exchanges which have been set out above.  The respondent’s position is that the complainant had a grievance about GM1 hiring an illegal worker.  Ms McFadden referred to the adjudication decision in the case of A Butcher v A Meat Processing Plant ADJ-00000108, where the adjudicator found that the complainant had a grievance that he attempted to “retrofit” as a protected disclosure.   

The Group HR Manager said that it is “100% the job of the complainant” to monitor work permits and to ensure that every employee has a legal entitlement to work in Ireland.  The payroll system has the capability to show the number of people in employment on a “live” basis and it identifies those who require work permits and shows that the permits have been validated.  The system shows the renewal date for each work permit and if the employee doesn’t submit a new permit, they are removed from the roster.

Recruitment of an Underage Employee

Information regarding an underage employee was not brought to the attention of the company in the course of the complainant’s employment.  This matter was included in the list of alleged protected disclosures referred to by the complainant in correspondence to the WRC on November 14^th 2018.

At the hearing, the Group HR Manager was asked about the employment of GM1’s granddaughter.  She said that this girl came to work in the hotel for two weeks during her mid-term break from school.  The complainant didn’t refer to this at the meeting on November 9^th 2017.  The Group HR Manager said that when she became aware that an underage person had been employed, she reported it to the Group General Manager.

Accommodation of a Homeless Person in a Hotel Room

The respondent’s position is that this was not a protected disclosure, but a welfare matter which the company addressed by contacting the homelessness service in Dublin City Council.  In their book of papers, the respondent included a note from a named hotel employee who informed their contact in Dublin City Council about the homeless person staying in the hotel under the Council’s emergency accommodation scheme for homeless people.  The contact the Council was asked to remove the homeless person due to concerns about her children.  The note records that the homeless person left the hotel for alternative accommodation on October 22^nd 2017.

Food Hygiene in a Hotel Kitchen

A copy of the complainant’s job description was submitted in evidence.  Among the list tasks under the heading of “Responsibilities,” this document states that part of her job involved the responsibility to,

“Plan, schedule and deliver training courses regularly / as required to maintain statutory training (H&S, fire, manual handling, food hygiene) at a minimum 85% compliance at all times.”

The respondent’s position is that an element of the complainant’s job involved training of staff in food hygiene and that her complaint about food hygiene is something that was within her remit to address.

In her direct evidence, the Group HR Manager was asked about this issue.  At the meeting with the complainant on November 17^th 2017, the Group HR Manager said that the complainant raised the fact that the head chef passed his probation, whereas her probation had been extended and she said that she felt that this was unfair.  The Group HR Manager suggested that this may have been some connection between this and the complainant’s report about food hygiene.

Use of a Building Adjacent to the Hotel to Accommodate an Employee

On December 7^th 2017, the Group HR Manager wrote to the Group’s Company Secretary and Head of Risk and Compliance to enquire about insurance on a building adjacent to one of the hotels where the complainant said that a chef was living.  The Head of Risk and Compliance confirmed that the building had been acquired by the Group, that it was used for residential accommodation prior to acquisition and that it was fully insured.  At the hearing, the complainant said that her issue was not about insurance but about health and safety, as it was her opinion that the house where the chef was accommodated was not safe for him to live in, particularly as she claimed that he had a drink problem.  In her evidence, the Group HR Manager said that she is satisfied that this building is suitable for habitation. 

Other Issues Raised by the Complainant

The Group HR Manager said that the first time she heard about the HR intern working as an accommodation assistant was at the hearing of this complaint.  The issue of a problem with the lift was never raised by the complainant.  Regarding the employee who was bitten by a hotel guest, this incident occurred before the complainant was recruited.  The respondent’s position is that none of these matters are protected disclosures but refer to matters that occurred in the hotels where the complainant worked and which were managed by the relevant responsible person.

Meeting with the Complainant on November 9^th 2018

The evidence of the Group HR Manager is that she had a meeting with the complainant on November 9^th 2018, to discuss her complaint of bullying by her line manager.  The Group HR Manager said that she went through the complainant’s 21 allegations against GM2 and near the end of the meeting, the complainant referred to herself as a “whistle-blower” and said that she wanted to know the outcome of the investigation into her earlier complaint about GM1 and the employment of a person without a work permit.  In her own correspondence to the WRC, she said that GM1 told her that he had been called to a meeting in head office to discuss this matter, but it appears that the complainant wanted to know if he had been disciplined for hiring an illegal employee.

Summary of the Respondent’s Position

It is the respondent’s case that the allegations that the complainant seeks to define as protected disclosures came to her attention as part of her role as the HR Manager for the two hotels to which she was assigned.  The complainant brought the issues to the attention of her employer and they were appropriately addressed in a timely and satisfactory manner.  Her dismissal arose from the fact that she accessed an ex-employee’s personal information to contact that person to solicit support for allegations she made against her line manager, GM2.  The respondent’s position is that the complainant’s actions amounted to wilful breach of confidentiality, trust and confidence, particularly in the context of her role as a HR Manager. 

In their book of papers, the respondent refers to the case of O’Neill v Toni and Guy Blackrock [2010] ELR 1, where the Labour Court determined that, to succeed in a claim of penalisation, a claimant must establish that the detriment alleged was imposed “for” having committed one of the acts protected by section 27(3) of the Safety, Health and Welfare at Work Act 2005.  The detriment must have occurred because of or in retaliation for having committed a protected act.

The respondent also referred to the case of Aidan and Henrietta McGrath Partnership v Monaghan, PDD [2017] ELR 8, which was cited by the complainant where the Labour Court confirmed that, to succeed in a complaint of penalisation, a claimant must establish that a protected disclosure has been made and that discrimination has occurred.

Are These Reports Protected Disclosures?

At the hearing, Ms McFadden referred to section 5.5 of the Protected Disclosures Act, which provides that,

“A matter is not a relevant wrongdoing if 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 an employer.”

Statutory Instrument 464 of 2015, the Industrial Relations Act 1990 (Code of Practice on Protected Disclosures Act 2014 (Declaration) Order 2015, sets out that,

“The information must come to the attention of the worker in connection with their employment, but a disclosure of any wrongdoing which is the worker’s, or the worker’s employer’s function to detect, investigate or prosecute does not come within the terms, or attract the protections and redress of the 2014 Act.”

Ms McFadden submitted that this exclusion was illustrated in the Labour Court in the case of Donegal County Council v Liam Carr PDD161, (7 June 2016).  Mr Carr made disclosures to his managers regarding the alleged behaviour and fitness of his colleagues.  Finding against him, the Court decided that the matters he complained of were within his function to detect and did not relate to any alleged omission by the employer.  The Court found that this complaint was misconceived and that a protected disclosure had not been made.

It is the respondent’s case that the matters alleged by the complainant to be protected disclosures were matters that, as a HR Manager, were her responsibility to detect.  In her capacity as the HR Manager in two of the group’s hotels, she brought these matters to the attention of the Group HR Manager, who took them seriously and addressed them.  Ms McFadden argued that the allegation of protected disclosures having been made are without merit and that her action regarding these matters do not bring her within the remit of the Unfair Dismissals Act.

As a complaint of penalisation for making protected disclosures, my task is to consider if the matters the complainant reported to the Group HR Manager were protected disclosures within the meaning of the Act.  If I am satisfied that she complainant made protected disclosures, to determine that her dismissal is a penalisation for so doing, I must establish that there was a connection between these disclosures and her dismissal. 

The Relevant Law

The definition of “protected disclosure” is set out at section 5(1) of the Act:  

“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 … made by a worker in the manner specified in section 6, 7, 8, 9 or 10.”

Sub-sections (6) and (7A) respectively address the disclosure of trade secrets and legally privileged information and these are not relevant for this complaint.  Sections 17 and 18 refer to law enforcement and international relations and are also not relevant here.  Sections 6 to 10 set out a tiered disclosure process and provides that information related to wrongdoings may be provided to a prescribed person, an employer, a government minister, a legal advisor or to another person.

A “protected disclosure” therefore, is the disclosure by an employee to his or her employer, or another person, of relevant information.  Section 5(2) of the Act provides that,

“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.”

The operative clause here is “reasonable belief.”  In the Q & A material included as an appendix to the “Statutory Review of the Protected Disclosures Act 2015,” the reviewers note that,

“…all that is required is a reasonable belief that the information disclosed shows or tends to show that the wrongdoing is occurring.  This is a deliberately low threshold designed to ensure that most reports are made to the person best placed to correct the alleged wrongdoing – the employer.”

It is apparent therefore that the Act intends that “relevant information” concerning an alleged wrongdoing is provided to an employer so that the employer can correct it and, that the employee does not have to be convinced that a wrongdoing has occurred but that the lower threshold of reasonable belief applies.

The wrongdoing that the complainant alleges occurred was her contention that her employer did not comply with specific legislation in relation to work permits, underage workers and kitchen hygiene.  Therefore, for our purposes here, we are concerned with the disclosure of relevant information made by a worker which is set out at sections 5(3)(b) and (d) of the 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,”

and,

“(d) that the health or safety of any individual has been, is being or is likely to be endangered.”

As pointed out by Ms McFadden at the hearing, section 5(5) sets out what a relevant wrongdoing is not and states that,

“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.”

Section 5(8) provides that in these proceedings at the WRC, “involving an issue as to whether a disclosure is a protected disclosure it shall be presumed, until the contrary is proved, that it is.” 

Protection of Employees from Dismissal

The case of Dougan and Clark v Lifeline Ambulances Limited (unreported, Circuit Court) cited by the complainant was the first case to come before the Circuit Court under the Protected Disclosures Act 2014, where the claimants were granted injunctive relief pending a hearing of their complaint of unfair dismissal.  Here, Mr Justice Comerford considered what would amount to substantial grounds for a Court to conclude that a dismissal may have resulted from having made a protected disclosure.  He concluded that the factors which show this connection are;

§    The temporal proximity between the making of the protected disclosure and the dismissal;

§    If there was any animosity between the parties as a result of the protected disclosure;

§    Whether fair procedures and natural justice were afforded to the employee in the dismissal process;

§    Whether any such procedures were a mere “window dressing;”

§    Whether the employee who made the disclosure was treated less favourably compared to other employees.

In the case we are considering here, the complainant was dismissed in April 2018, and she claims that she made a protected disclosure in the first instance in July 2017.  In November 2017, at a hearing of her complaint against her manager, she reported that GM1 had recruited more illegal employees.  The complainant was dismissed in April 2018, and I find therefore, that the “temporal proximity” test set out in the Lifeline case has not been met.

Rather than animosity arising from having reported the illegal worker, the Group HR Manager told the complainant that she was correct to let him go.

Having considered the evidence of both parties at the hearing of this complaint, I am satisfied that the procedures that the respondent followed in reaching a decision to dismiss the complainant were fair and in accordance with Statutory Instrument 146 of 2000, the Code of Practice on Grievance and Disciplinary Procedures.

The complainant produced no evidence that she was treated less favourably than any other employee as a result of the issues she reported.

Did the Complainant Make Protected Disclosures?

In July 2017, the complainant raised her concerns about the employment of a person without a valid work permit.  In November that year, during a meeting to discuss her complaint against her manager, she raised this issue again, and she also alleged that there was a poor standard of hygiene in one of the hotel’s kitchens.  At the same meeting, she said that she alerted the Group HR Manager to problems with a homeless guest.  The remainder of the complainant’s allegations under the heading of protected disclosures were made after she was dismissed and therefore cannot be considered as penalisation for having been dismissed.

The case in 2016 of Donegal County Council v Liam Carr PDD161, was referred to by Ms McFadden to support the respondent’s position that the complainant did not made any protected disclosures but that she raised issues that were within her remit to bring to the attention of her managers or which, as a HR Manager, were her responsibility to deal with.  In the Donegal County Council case, finding against Mr Carr, the Court decided that the matters he complained of were within his function to detect and did not relate to any alleged omission by his employer.  The Court found that his complaint was misconceived and that a protected disclosure had not been made.

It is my view that the identification of persons working in the hotels without a valid work permit was the job of the complainant to detect and manage.  At the hearing, I heard evidence that the respondent has a system in place to identify employees whose work permits are about to expire, so that they can ensure that new permits are produced.

After she raised this matter in July 2017, the complainant had the full support of the Group HR Manager in her endeavours to put in place a process with GM1 and GM2 to ensure that every employee was legally entitled to work in the hotels.  The complainant’s reference to GM1 recruiting new illegals later in the year is not the subject of a protected disclosure, but an issue for the complainant to manage.  In her evidence at the hearing, she said that she managed this problem by taking the new people off the roster.

It is my view that the raising of a concern about hygiene in one of the kitchens is not a protected disclosure.  It is apparent that training on food hygiene in the two hotels to which she was assigned was part of the complainant’s job and she gave no evidence that she made any efforts to address the problem as she saw it.  The complainant did not identify any legal requirement that was not being met by the management of the hotels in respect of kitchen hygiene, apart from her view that the kitchen was “very dirty.”  The raising of a concern about hygiene during an investigation into a grievance about bullying leads me to conclude that the complainant’s concern about kitchen hygiene was insufficient of itself to warrant a standalone complaint.

The precedent case of Aidan and Henrietta McGrath Partnership v Anna Monaghan, PDD 162 was referred to by both parties at the hearing of this complaint.  Ms Monaghan, who was a care assistant, made allegations of wrongdoings regarding patient care at her appraisal meeting and by letter and in phone calls to the Health Information and Quality Authority (HIQA).  Following allegations by colleagues that her complaints may have been motivated by malice, she was suspended for several months.  In its findings, the Labour Court decided that Ms Monaghan had informed her employer about alleged wrongdoings regarding patient care which she reasonably believed was occurring in the nursing home where she worked and which had come to her attention in the course of her employment.  The Court also found that these concerns related to health and safety risks to residents within the meaning of section 5(3)(d) of the Protected Disclosures Act.

It is my view that the issues raised by the complainant in July and November 2017 were not protected disclosures but were issues that were her responsibility to manage.  For this reason, she is not in the same predicament as the complainant in the McGrath Partnership case and there is no requirement to examine any further the relevance of that precedent. 

Finding against the complainant in the Donegal County Council case, the chairman, Mr Foley stated:

“The complaints which are alleged to be protected disclosures in the within case (a) could not reasonably argued to be outside the function of a station officer in the fire service to detect and (b) relate to matters other than an alleged omission of an employer.  On a plain reading of the Act therefore, the Court finds that the complaint made by the appellant in this case is misconceived.”

It is my view that the identification of employees whose work permits have expired, or who do not have valid work permits is part of the function of a HR Manager.  I also find that the complainant’s opinion that the kitchen in one of the hotels was dirty is not a protected disclosure, but an observation that was within the parameters of her role to improve.  Taking into account the findings of the Labour Court in the Donegal County Council case, and, in accordance with section 5(5) of the Act, I find that the matters reported by the complainant were not “relevant wrongdoings” but that they were within her function to detect.  I find therefore, that this complaint is misconceived.

The complainant has not established that the matters she referred to in her submissions to the WRC and in her evidence at the hearing are protected disclosures within the definition at section 5.5 of the Protected Disclosures Act.  It follows therefore, that she cannot satisfy the second part of the test set out in section 6(2)(ba) of the Unfair Dismissals Act, that her dismissal resulted wholly or mainly from having made a protected disclosure.  On this basis, I decide that her complaint is not upheld.

Protected disclosure, unfair dismissal