PDD202

The Adjudication Office held that the complaint was not well-founded.

In line with the normal practice of the Court, the parties are referred to in this Determination as they were at first instance. Hence, Mr McNamee is referred to as the Complainant and Mountrath Amalgamated CEP Company is referred to as the Respondent.

Background

The Complainant was employed with the Respondent as a Community Employment Scheme Supervisor from June 2006. His employment terminated on the 12th October 2017. It is his complaint that he was penalised for making a protected disclosure. The Complainant lodged his claim with the WRC on the 30th December 2017. The cognisable period for the purpose of the Act therefore is 1st July 2017 to the 30th December 2017.

Complainant’s case

It is the Complainants submission that he made a protected disclosure at a board meeting in June 2016 and that he was penalised on the 12th October 2017 when his employment terminated and the Respondent did not pay him in respect of his outstanding annual leave.

Respondent’s case

The Respondent disputes that the Complainant made a disclosure of any kind at the Board meeting in June. The Respondent drew the Court’s attention to the minutes of that meeting. The Respondent also disputed not paying for outstanding annual leave. There was some confusion over his entitlement to annual leave but this was in no way linked to his alleged protected disclosure. A WRC inspection had identified that additional payments were due to the Complainant, in respect of annual leave when he was on sick leave and those payments have now been made.

Discussion

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 not getting paid for out standing annual leave. The Respondent in its submission is clear that this issue arose from a misunderstanding of the legislation relating to the accrual of annual leave while on sick leave and that the issue has been resolved and all outstanding monies paid. 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 alleged penalisation that the issue relating to his annual leave would have arisen even if he had not made a protected disclosure. In those circumstances the Court must find that the non-payment in respect of accrued annual leave was wholly unrelated to the protected disclosure and therefore no detriment in line with s12 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
CO'R______________________
16 January 2020Deputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Clodagh O'Reilly, Court Secretary.