PCD201

The cognisable period for the purpose of the Act is 4^thJanuary 2018 to the 3^rdJuly 2018. The Respondent raised a preliminary issue as to whether or not the Court had jurisdiction to hear the complaint. The Court decided to address the preliminary issue first.

Preliminary issue.

The Respondent raised as a preliminary issue that the Court did not have jurisdiction to hear the case. It was their submission that section 8A (5A) of the 2001 Act as amended states that section 8A (5) does not apply to a communication or furnishing of information that is a Protected Disclosure. In this case the disclosure related to the production and creation of incorrect invoices. The Complainant and his Representatives in all correspondence with the respondent relating to these issues identified the raising of the issues as Protected Disclosures.

The Complainant submitted that the communication he made was in relation to members of staff including himself generating incorrect invoices so as to increase their bonus payment with a possible beneficial knock on for the Respondent. It was his submission that this fell within the definition of an offence under the Act and therefore the Court did have jurisdiction to hear the Complaint. It was his submission that he was penalised by being moved to a non-food area of the company. He accepted that there was no change to his rate of pay or hours of work or what would normally be considered terms and conditions of employment. However, the new position did not have the ‘standing’ of his previous position.

The Law

Protection for persons (including employees) reporting offences underPrevention of Corruption Acts 1889 to 2010.

8A.— (1) A person who, apart from this section, would be so liable shall not be liable in damages in respect of the communication, whether in writing or otherwise, by the person to an appropriate person of his or her opinion that an offence under thePrevention of Corruption Acts 1889 to 2010may have been or may be being committed unless —

(a) in communicating his or her opinion to that appropriate person did so —

(i) knowing it to be false, misleading, frivolous or vexatious, or

(ii) reckless as to whether it was false, misleading, frivolous or vexatious,

or

(b) in connection with the communication of his or her opinion to that appropriate person, furnished information that he or she knew to be false or misleading.

(2) The reference insubsection (1)to liability in damages shall be construed as including a reference to liability to any other form of relief.

(2A)Subsection (1)does not apply to a communication, or furnishing of information, that is a protected disclosure within the meaning of the Protected Disclosures Act 2014. (3) A person who makes a communication undersubsection (1), which the person knows to be false, that a person may have committed or may be committing an offence under thePrevention of Corruption Acts 1889 to 2010shall be guilty of an offence.

(3)…

(4) …..

(5) 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 —

(a) having formed an opinion of the kind referred to insubsection (1)and communicated it, whether in writing or otherwise, to an appropriate person unless the employee —

(i) in communicating his or her opinion to that appropriate person did so —

(I) knowing it to be false, misleading, frivolous or vexatious, or

(II) reckless as to whether it was false, misleading, frivolous or vexatious,

or

(ii) in connection with the communication of his or her opinion to that appropriate person, furnished information that he or she knew to be false or misleading,

or

(b) giving notice of his or her intention to do the thing referred to inparagraph (a).

(5A)Subsection (5)does not apply to a communication, or furnishing of information, that is a protected disclosure within the meaning of the Protected Disclosures Act 2014.

Section 5 of the Protected Disclosures Act 2014 states:

5.(1) For the purposes of this Act “protected disclosure” means, subject tosubsections (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 insection 6,7,8,9or10.

(2) For the purposes of this Act information is “relevant information” if—

(a) in the reasonable belief of the worker, it tends to show one or more relevant wrongdoings, and

(b) it came to the attention of the worker in connection with the worker’s employment.

(3) The following matters are relevant wrongdoings for the purposes of this Act—

(a) that an offence has been, is being or is likely to be committed,

(b) that a person has failed, is failing or is likely to fail to comply with any legal obligation, other than one arising under the worker’s contract of employment or other contract whereby the worker undertakes to do or perform personally any work or services,

(c) that a miscarriage of justice has occurred, is occurring or is likely to occur,

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

(e) that the environment has been, is being or is likely to be damaged,

(f) that an unlawful or otherwise improper use of funds or resources of a public body, or of other public money, has occurred, is occurring or is likely to occur,

(g) that an act or omission by or on behalf of a public body is oppressive, discriminatory or grossly negligent or constitutes gross mismanagement, or

(h) that information tending to show any matter falling within any of the preceding paragraphs has been, is being or is likely to be concealed or destroyed.

Discussion

Section 8A (5A) states the Act does not apply to a communication, or, furnishing of information that is a protected disclosure under the Protected Disclosures Act 2014. In correspondence furnished to the Court the Complainant himself and his previous representatives referred to the communication as a protected disclosure. Section 5 (3) (a) of the Protected Disclosure Act identifies that an offence had been , is being or is likely to be committed as a relevant wrongdoing. The Court having considered the written submissions of the parties and listened carefully to the oral submissions on the day considers the issues raised by the Complainant to be relevant wrongdoings that fall with the Protected Disclosures Act 2014.

Determination.

The Court having determined that the issues complained of are relevant wrong doings as defined by the Protected Disclosures Act 2014 determines that it does not have jurisdiction to hear the claims under the Prevention of Corruption Acts 1889 to 2010 and therefore the appeal must fail.

The Decision of the Adjudication Officer is upheld.

The Court so Determines.

Signed on behalf of the Labour Court



Louise O'Donnell
RK______________________
03/02/2020Deputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Richard Kennedy, Court Secretary.