Complainant

Respondent

Anonymised Parties

A Board Member

A State Body

Representatives

The Complainant attended the Hearing in person and was not represented

Mr. Barra Faughnan B.L. on the instructions of Eversheds Sutherland Solicitors

Act

Complaint Reference No.

Date of Receipt

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

CA-00023643-001

29/11/2018

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

CA-00023643-002

29/11/2018

The Respondent is a corporate body established by statute. The Complainant was appointed to the Board of the Respondent by the then Minister on 10 June, 2014 and his term of appointment expired on 31 May, 2018. The Complainant indicated to the Chairperson of the Board prior to the expiry of his term of appointment of his interest in being reappointed for a further term. The Complainant was subsequently not reappointed for a second term and he claims that the failure to reappointment him amounts to an unfair dismissal contrary to the Unfair Dismissals Act, 1997.

The Complainant also claims that he was subjected to penalisation by the Respondent contrary to Section 12 of the Protected Disclosures Act 2014 after having made a protected disclosure.

The Respondent disputes the Complainant’s claim that he was subjected to penalisation contrary to Section 12 of the Protected Disclosures Act 2014 as a result of having made a protected disclosure. The Respondent also disputes the claim under the Unfair Dismissals Act 1977 and contends that the Complainant, being a statutory office holder, was not an employee within the meaning of Section 1 of the Act.

CA-00023643-001 – Complaint under the Unfair Dismissals Act 1977

Jurisdictional Issue

The Complainant disputes the Respondent’s contention that he was not an employee of the Respondent and, that he is therefore, debarred from pursuing a complaint under the Unfair Dismissals Act, 1977.

The Complainant made the following submissions in support of his position that he was an “employee” of the Respondent within the meaning of Section 1 of the Act for the duration of the period of his appointment as a Board member.

·         The Complainant stated that he was required to attend Board meetings on a regular basis during the period of his appointment. The Complainant submits that he also carried out additional work of an administrative and quality control nature for the Dispute Resolution Service which came under the remit of the Respondent. The Complainant contends that the additional work which he performed for the Dispute Resolution Service was outside the scope of his normal duties as a member of the Board. The Complainant submits that this work involved the discharge of duties ordinarily carried out by the Respondent’s Administration Section in relation to the checking and proof reading of documentation and the attendance at weekly meetings. The Complainant stated that he was paid separately by the Respondent for carrying out this additional work together with payment for the other official duties that he was required to carry out in his capacity as a member of the Board.

·         The Complainant submits that he was a non-executive member of the Board and that the additional duties which he performed were over and above the list of statutory duties required of a member of the Board as per the governing legislation for the Respondent.

·         The Complainant submits that the additional quality control work which he performed is now carried out by the Respondent’s Administration staff following an amendment to the legislation which governs the operation of the Respondent as a statutory body. The Complainant contends that this is further evidence that the additional work in relation to quality control which he carried out during his term of appointment was over and above the normal duties carried out by a member of the Board.

·         The Complainant submits that he carried out this additional work throughout the duration of his term as a Board member and as a result had a “right” to remain in the position on the expiry of his term of appointment.

·         The Complainant submits that he was also involved in the development of a Quality Assurance Unit within the Respondent during the period of his term as a member of the Board and that this work was over and above his statutory duties as a Board member.

·         The Complainant submits that his employment status with the Respondent is further evidenced by the fact that he received payslips, P45 and P60 in respect of his employment with the Respondent. The Complainant submits that he was also registered for PRSI (albeit that he paid PRSI at a zero rate) in relation to his employment with the Respondent.

Submissions on substantive claim under the Unfair Dismissals Act 1977

The Complainant submits that his term of appointment to the Board of the Respondent was due to expire on 31 May, 2018 and that he contacted the Chairperson of the Board in advance of this date to inform her of his intention to seek re-appointment for a further term. The Complainant stated that he was informed by the Chairperson that he should forward her an e-mail in relation to same to confirm his intention to seek re-appointment and that she would “take care” of the matter from there. The Complainant stated that he asked the Chairperson if he should also send an e-mail to the Director of the Respondent in relation to the matter but was informed that she would take care of all of that.

The Complainant stated that he felt assured that his re-appointment to the Board was a formality given the assurances he had received from the Chairperson. The Complainant submits that a period of time elapsed and he became concerned as he hadn’t received any communication from either the Minister or the Chairperson in relation to his re-appointment.

The Complainant stated that he did not receive any formal communication from the Respondent in relation to his re-appointment and he only found out that his term was not being renewed when he attended a meeting of the Disputes Resolution Service on 29 May, 2018. The Complainant stated that he did not receive any further documentation from the Respondent in relation to the Disputes Resolution work after his term expired on 31 May, 2018. The Complainant submits that he sent an e-mail to the Chairperson on 1 June, 2018 expressing his disappointment at not being re-appointed to the Board and the lacklustre communication process in relation to the matter. The Complainant submits that he subsequently requested his P45 as he hadn’t received any official communication from the Minister in relation to his re-appointment. The Complainant’s P45 was issued to him by the Respondent in July, 2018.

The Complainant submits that the Chairperson of the Board had a significant role in his attempts to seek re-appointment and could have caused this to occur if she had formally indicated to the Minister that she supported his application for re-appointment. The Complainant stated that the Chairperson failed to proactively pursue this matter on his behalf but instead waited to be asked for her views on his application for re-appointment by, or on behalf of, the Minister. The Complainant submits that had the Chairperson proposed or recommended his re-appointment to the Minister, the Minister would have been obliged to contact her for her views on the matter in accordance with the Guidelines on Appointments to State Boards (as published by the Department of Public Expenditure and Reform in November, 2014).

The Complainant submits that the Chairperson’s e-mail to the Respondent’s Director requesting her to forward his request to be re-appointed appears to be the only correspondence that the Chairperson sent to anyone in relation to his request for re-appointment. The Complainant contends that it is reasonable for him to assume that the Chairperson did not recommend his re-appointment as requested. The Complainant stated that the Chairperson sent an e-mail to the Director with a two-line message asking her to pass it on to the relevant personnel in the Department. The Director in turn sent a two-line e-mail to two named officials within the Department but the e-mail was not sent or copied to the Minister or his Private Secretary. The Complainant contends that the e-mail lay somewhere in the Department for six weeks before being presented to the Minister in mid-May, 2018.

The Complainant submits that the Respondent’s failure to re-appoint him as a member of the Board on the expiry of his term on 31 May, 2018 constitutes an unfair dismissal contrary to the Unfair Dismissals Acts.

CA-00023643-002 - Complaint under the Protected Disclosures Act, 2014

The Complainant claims that he was subjected to penalisation by the Respondent contrary to Section 12 of the Protected Disclosures Act 2014 after having made a protected disclosure.

The Complainant submits that he made a protected disclosure to the Minister in relation to the manner in which a competition for the appointment of members of the Respondent’s Disputes Resolution Committee had been conducted. The Complainant submits that this protected disclosure took the form of a joint letter which he wrote to the Minister in conjunction with three other members of the Board on 3 November, 2014. This letter raised concerns that the competitive process had not been conducted in an appropriate manner and it detailed a number of alleged deficiencies in the process.

The Complainant submits that the Chairperson of the Board canvassed the support of other Board members to rally around her in order to isolate him and the other three members of the Board for making the protected disclosure to the Minister. The Complainant contends that the Chairperson was later alleged to have stated that the four members of the Board who made the protected disclosure would pay dearly. The Complainant submits that there was a lot of bad feeling and division among members of the Board in relation to this matter. However, the Complainant and the other three members who had made the protected disclosure tried to put the matter behind them thereafter and to carry out their duties to the best of their ability.

The Complainant submits that he was ultimately subjected to penalisation for making this protected disclosure by not being re-appointed to the Board when his term expired on 31 May, 2018. The Complainant contends that he was the only ordinary member of the Board that was not re-appointed for a second term since the establishment of the Respondent. The Complainant contends that the Chairperson of the Board was in a position to progress and further his request for re-appointment to the Board for a second term, but she failed to proactively pursue this matter on his behalf with the Minister.

The Complainant stated that he formally expressed his interest in being re-appointed for a second term by way of e-mail to the Chairperson and he had an expectation that his expression of interest would have been brought directly to the attention of the Minister. The Complainant contends that the Chairperson of the Board and the Director of the Respondent did not follow the normal protocols in progressing his request for re-appointment to the Board. The Complainant stated that the reason why the Chairperson did not take appropriate measures to progress his request for re-appointment was directly attributable to the protected disclosure which he had made to the Minister in November, 2014. The Complainant contends that the lack of support that he received from the Chairperson and the Director ultimately resulted in him not being re-appointed to the Board following the expiry of his term on 31 May, 2018.

CA-00023643-001 – Complaint under the Unfair Dismissals Act 1977

Jurisdictional Issue

The Respondent raised a preliminary objection in relation to the jurisdiction of the Director General of the WRC to inquire into the complaint under the Unfair Dismissals Act. The Respondent submits that the Complainant was a statutory office-holder and not an employee and therefore, is not entitled to bring, and the WRC is not entitled to entertain, a claim of unfair dismissal.

The Respondent’s submissions in relation to issue of jurisdiction can be summarised as follows: namely:

·         The Complainant took up an appointment as member of the Board of the Respondent on 11 June, 2014 for a period of four years. The Complainant was not an “employee” of the Respondent within the meaning of Section 1 of the Unfair Dismissals Act but rather was an office-holder appointed under and subject to the provisions of the specific enactment under which he was appointed.

·         The Complainant was appointed to the role as Board member by the Minister in accordance with the relevant provisions of the specific legislation for a period of up to five years. Notwithstanding the fact that the person serves on the board of the Respondent, which is a legal entity, it is clear from the statutory framework that the entirety of the decision-making process and appointment process as regards initial appointment, and/or removal and/or extension of an appointment following expiry of a term, all vest by statute in the Minister.

·         The Complainant was not retained pursuant to a “contract of employment”. Rather the Complainant came to be on the Board pursuant to an instrument of appointment, promulgated by the Minister, at the material time dated 11 June, 2014 until 31 May, 2018.

·         The Complainant had specific duties and terms attached to his appointment, which were at all times promulgated and stipulated by the relevant Department on behalf of the Minister. The terms of appointment and/or duties of members of the Board and the terms of remuneration of members of the Board as laid down in the statute and/or promulgated by the Department and the Respondent, at no time, had any entitlement to determine same.

·         The Respondent did pay the Complainant in relation to his appointment, but the terms and quantum of such payment were always prescribed by the Minister.

·         Board members are not full-time appointees. During the Complainant’s time on the Board, Board members were required to attend a particular minimum number of meetings during the year and were paid a specific sum for every meeting and specific identified expenses.

·         The law has for some time recognised the distinct position of office-holders and/or those who hold appointment at the pleasure of the government or a minister of the government. In some circumstances, where they are in full time or pensionable positions such as the Commissioner of an Garda Siochána, such as in Garvey -v- Ireland [2006] IESC 3, the law recognises the need for protections in relation to tenure of such office-holders and the need for air procedures on removal (see also Glover -v- BLN (1973) IR 388 in relation to company directors). The Complainant was not such an office-holder. He was one of a number of members of a Board who was appointed for a term specified by date, by reference to the parameters laid down in the statute. His term expired on 31 May, 2018. The Complainant was, pursuant to the provisions of the relevant statute, eligible for re-appointment by the Minister to the Board, but there was no legal entitlement and/or expectation that he would be so re-appointed. Crucially, for the purpose of this application, any such re-appointment was, as with the original appointment, a matter of the exclusive statutory prerogative of the Minister.

·         The Minister, who makes the decision on the extension of terms of appointment, has on occasion, asked the Chairperson of the Board for his/her views on a proposed appointment. However, this did not occur in the Complainant’s case.

The Respondent also made the following submissions in response to a number of points made by the Complainant in relation to his employment status:

·         Firstly, the Respondent disputes the Complainant’s contention that he did more work than was covered by his duties as a Board member which he claims was “oversight only” and, as a result thereof, he was an employee of the Respondent. In this regard, the Complainant has referred to dispute resolution meetings, quality controls and administrative work. It was submitted that the Board convened a large number of dispute resolution meetings during the period the Complainant was a Board member in order to carry out the functions designated to them by the Director of the Respondent. The Complainant, as a statutory office holder, was remunerated for his attendance pursuant to the statutory regime which was in place at the time. The Complainant was not obligated to attend these dispute resolution meetings and the fact that he did attend does not mean, either that he was transmogrified legally or factually into an employee, or that he had duties over and above what was required by or encompassed in his membership of the Board at the material time. All the duties performed by the Complainant were expressly contemplated by his terms of office as a Board member under the prevailing legislation. Contrary to the Complainant’s assertion, it was not accepted that either the Chairperson or the Director of the Respondent acknowledged that the Complainant was an employee or that he was doing work outside his remit as a Board member.

·         Secondly, the Respondent also disputes the Complainant’s contention that he was performing additional duties, such as his involvement in the development of a Quality Assurance Unit, as some form of quasi-employee as opposed to a Board member. It is accepted that the Complainant had an involvement in the establishment of a Quality Assurance Unit which was put in place following a review of the procedures carried out in conjunction with the Respondent’s legal advisers. However, the Complainant’s involvement in this process was in his capacity as a member of the Board and as part of the work being carried out by the Board.

·         Thirdly, the Respondent disputes the Complainant’s contention that the fact of him having received a P45/P60 and a payslip was consistent with his being an employee. It was submitted that the fact of receiving a payslip, of itself, is not indicative that the Complainant, or any other person, was an employee. Contrary to the Complainant’s assertion, there was no deductions made from his payment in respect of PRSI, either employer or employee, due to the fact that he was an office holder (and not an employee) and as such he was not liable to pay PRSI. The payroll treatment of the Complainant including the content of those payslips was done by the Respondent following a review of a guidance note made available by the Office of the Revenue Commissioners as to how to treat office-holders, who are not employees, for tax purposes.

Submissions on substantive claim under the Unfair Dismissals Act 1977

The Respondent outlined the chronology of the Complainant’s tenure on the Board of the Respondent:

·         The Complainant was appointed to the Board of the Respondent on 11 June, 2014 by the Minister and that appointment was made with no reference whatsoever to the Respondent or any of its members.

·         The Complainant’s term was due to expire on 31 May, 2018.

·         On 31 March, 2018, the Complainant e-mailed the Chairperson of the Board expressing an interest in re-appointment as a member of the Board. That e-mail was communicated to the Director of the Respondent on 29 March, 2018, who in turn, communicated that expression of interest by e-mail to the Department on the same day.

·         The Chairperson of the Board, had a discussion with the Complainant, during which his application to seek re-appointment to the Board came up. She indicated that, in the event that her opinion was sought by the Minister, she would indicate that she was supportive of his being re-appointed.

·         The view of the Chairperson was never sought in relation to the matter by the Minister or officials on his behalf.

The Respondent submits that in order to have a claim for unfair dismissal, not merely must the Complainant be an employee, s/he must have been dismissed within the meaning of Section 1 of the Act. The Respondent submits that if the Complainant had been an employee and retained under a contract of employment, which he was not, the extension of this appointment on its expiry was a matter solely for an external process governed by a different party entirely from the Respondent, via the relevant Minister. Therefore, the person or entity with the statutory authority and power to extend the appointment formed no part of the Respondent organisation at all. The Respondent contends that the Complainant was not dismissed by the Respondent within the meaning of Section 1 of the Act. The Respondent relied upon the case of Kenny -v- The Trustees of the Operative Plasterers and Allied Trade Society of Ireland UD14/1990 in support of its position on this point.

The Respondent submits hat notwithstanding the foregoing, the Complainant faces a further fatal hurdle to the claim for unfair dismissal brought in these proceedings; had the Complainant been appointed under a contract of employment, which he was not, had he been an employee, which he was not, and had he been dismissed, which he was not, said dismissal would nonetheless have been deemed fair having regard to the provisions of Section of 6(4)(d) of the Act.

The Respondent submits that in this case, the statutory and only legal basis for appointment of the Complainant to the Board of the Respondent are the operative provisions of legislation. Similarly, the entitlement to re-appoint a member at the expiry of his or her term is equally embodied expressly, and exclusively within the statute. There is no power vested in the Respondent, of itself, to appoint, remove or to extend the appointment of members of its board appointed by the Minister under statute.

Accordingly, upon the expiration of the term of the Complainant on 31 May, 2018, and absent any order or direction of the Minister providing for his re-appointment, which was not made, it was not open to the Respondent to maintain the Complainant’s position as member of the Board. Had it done, the Respondent would have purportedly exercised a power, which is the exclusive prerogative of the Minister.

It was submitted that the Respondent is a creature of statute and could only have maintained the appointment of the Complainant by breaching the terms of the statute or acting ultra vires its own statute. It is submitted that in the circumstances, and by operation of Section 6(4)(b) of the Act, had there been a dismissal, it should be deemed as a matter of law not to be unfair.

CA-00023643-002 - Complaint under the Protected Disclosures Act, 2014

The Respondent submits that the claim of penalisation contrary to the Protected Disclosures Act 2014 is fundamentally misconceived as a matter of law and is made against the incorrect Respondent. The protected act which the Complainant seeks to rely upon in the instant case is the sending of a letter of complaint to the then Minister in 2014. The detriment claimed by the Complainant is that his term as a Board member of the Respondent was not extended by the Minister. Having regard to the fact that it was the exclusive prerogative of the Minister both to have him appointed and/or to renew his appointment it was submitted that the Respondent simply was not in a position to effect any detriment on the Complainant. The Respondent submits that it did not make the decision upon which the claim of penalisation is predicated and therefore, cannot be held liable for the alleged act of penalisation.

The Respondent accepts that the Complainant and a number of other members of the Board wrote a joint letter to the Minister in November, 2014 in relation to how a competition for the appointment of members to the Dispute Resolution Committee of the statutory body was being conducted. It is also the case that prior to the making of the complaint, the issue caused considerable tension within the Board. The Respondent submits that a majority of Board members, including the Chairperson, supported the manner in which the competition had been run and a minority of members – those who signed the letters of complaint, took issue with it. Given the level of issues raised in the letters of complaint regarding the recruitment selection process, the Board was of the view that an independent audit was required to determine the probity and integrity of the process. The Board, therefore, made a request for an independent audit to be carried out. The Chairperson met with the relevant Government Department to discuss the matter and on foot of that meeting, the Department confirmed their recommendation that an independent audit of the process would be of value to the Respondent. The independent auditor completed a thorough analysis of the process and issued a report dated 19 February, 2015 which ultimately vindicated the manner in which the selection process had been conduct albeit that a number of recommendations were made as to how the process could be improved.

The Respondent accepts that the said letter of complaint made by the Complainant and other members of the Board is capable of coming within the definition of a “protected disclosure” within the meaning of the Protected Disclosures Act 2014. It is also accepted that the Minister, to whom the letters were written, is a person capable of receiving a protected disclosure under the legislation. The Respondent submits that a person who makes a claim of penalisation under the legislation bears a particular onus of proof, firstly, to demonstrate that there has been a “detriment” which is capable of being construed as penalisation and, secondly, that there is a causal connection between the “protected act” and the detriment said to constitute penalisation.

The Respondent submits that it is by no means enough to say, as the Complainant does, that he made a protected disclosure and his tenure was not renewed. It was submitted that a Complainant must go much further than that. The Respondent referred to the evidential test established by the Labour Court in the cases of O’Neill -v- Toni & Guy Blackrock Limited and Aidan & Henrietta McGrath Partnership -v- Anna Monaghan PDD162 and submits that these rulings put the Complainant’s case in jeopardy in that:

·         The decision maker in the instant case was the Minister. The Complainant has not produced, or sought to produce, any evidence at all as to the motivation of the decision maker in making the decision not to renew his appointment (and crucially has not brought a complaint against the Minister).

·         The Complainant himself has also posited a completely different proposition as to why his term was not renewed, being the unhappiness within the Department as to the circumstances in which he was first appointed by the previous Minister. If the latter proposition is even possible, it cannot be said that the “but for” test has been satisfied.

The Respondent submits that there is a further difficulty with the Complainant’s claim in terms of the remoteness in time between the disclosure and the alleged act of penalisation. There was more than three years between the disclosure of information by way of the letter to the Minister in 2014 and the decision not to re-appoint the Complainant to the Board of the Respondent. This is further compounded by the fact that there were different Ministers involved at different stages of this narrative. The Respondent relied upon the decision of the WRC in the case of A Senior Official -v- A Local Authority ADJ-00001721 in support of its position on this point.

The Respondent submits that at the height of the Complainant’s case in relation to the protected disclosure is a suggestion, by the Complainant to which the Respondent takes strenuous objection. It is alleged by the Complainant that the Chairperson of the Board: “canvassed support of other Board members to rally around her and to isolate us on the Board for raising issues with the Minister and she is said to have later stated that all 4 of us that raised these issues would pay dearly and I believe that to be the case against me”. The Respondent submits that there was significant tension within the Board in relation to the dispute arising from the relevant competition. The Chairperson was on the side of the majority in that dispute defending the competition as it had been run and the Complainant was on the other side. The Chairperson was the focal point for communication between the two opposing sides and the Minister in relation to dealing with complaints. The Respondent disputes that the Chairperson “rallied the troops” and/or isolated Board members but she certainly expressed her disappointment at the making of the complaints at Board level as did other members of the Board. There was a strong difference of opinion on both sides which was dealt with by the Minister and clarified by the production of the report of an independent person. The Respondent submits that the Chairperson did not make the hearsay comments now attributed to her by the Complainant.

The Respondent submits that by the time the issue of the Complainant’s re-appointment came up, the complaint to the Minister and the report on foot thereof were some years in the past. When asked, the Chairperson advised the Complainant that she would be supportive of his reappointment. The Chairperson indicated this to a Departmental official and would have confirmed same to the Minister had she been asked. The Respondent submits that the reality is that the Chairperson was not asked, and the Minister made his own decisions as he was perfectly entitled to do.

CA-00023643-001 – Complaint under the Unfair Dismissals Act 1977

The first issue that I must decide relates to the jurisdictional issue raised by the Respondent as to whether or not the Complainant is entitled to maintain a claim under the Unfair Dismissals Acts. The Respondent contends that the Complainant was a statutory office-holder and not and employee and therefore, cannot maintain a complaint under the Act.

The term “employee” is defined in Section 1 of the Act as follows:

““employee” means an individual who has entered into or works under (or, where the employment has ceased, worked under) a contract of employment and, in relation to redress for a dismissal under this Act, includes, in the case of the death of the employee concerned at any time following the dismissal, his personal representative”.

The term “contract of employment” is defined in Section 2 of the Act as follows:

““contract of employment” means a contract of service or of apprenticeship, whether it is express or implied and (if it is express) whether it is oral or in writing”.

It is clear from these provisions that a person must be employed under a contract of employment within the meaning of the legislation in order to maintain a complaint of unfair dismissal against his/her employer under the Act.

In the instant case it was not in dispute that the Complainant was appointed to the Board of the Respondent, a statutory body, by the relevant Minister for a period from 10 June, 2014 to 31 May, 2018. The Complainant’s appointment to the Board was made in accordance with the following provisions of the relevant enactment:

“Section X - Membership of Board.

(2) The members of the Board shall be appointed by the Minister as soon as may be after the establishment day and shall be persons who, in the Minister’s opinion, have experience in a field of expertise relevant to the Board’s functions.

(3) Except as provided for by subsection (2), the members of the Board shall be appointed from time to time as occasion requires by the Minister.

(4) ……..

(5) The Minister when appointing a member shall fix such member’s period of membership which shall not exceed 5 years and, subject to this section, membership shall be on such terms as the Minister may determine.

(6) The members of the Board (including the chairperson) may be paid such remuneration as the Minister, with the consent of the Minister for Finance, may determine.”

“Section XX - Supplemental provisions as to membership of Board.

(1) A member of the Board may at any time resign his or her membership by letter addressed to the Minister and the resignation shall take effect from the date specified in the letter or upon receipt of the letter by the Minister, whichever is the later.

(2) A member of the Board may, at any time, be removed from membership of the Board by the Minister if, in the Minister’s opinion, the member has become incapable through ill-health of performing his or her functions, or has committed stated misbehaviour, or his or her removal appears to the Minister to be necessary for the effective performance by the Board of its functions.

(3) A person shall cease to be, and shall be disqualified from being, a member of the Board where he or she—

(a) is adjudicated bankrupt,

(b) makes a composition or arrangement with creditors,

(c) is sentenced by a court of competent jurisdiction to a term of imprisonment, or

(d) is disqualified or restricted from being a director of any company.

(4) If a member of the Board dies, resigns, becomes disqualified or is removed from membership, the Minister may appoint a person to be a member of the Board and fill the casual vacancy so caused.

(5) A member of the Board whose term of membership of the Board expires shall be eligible for re-appointment as a member of the Board”.

In considering this issue, I note that the characteristic features of an office-holder were defined by Kenny J. in the case of Glover -v- BLN Ltd(1973) IR 388 where it was stated: “[an office] is created by Act of the National Parliament, charter, statutory regulation, articles of association of a company or of a body corporate formed under the authority of a statute, deed of trust, grant or by prescription; and that the holder of it may be removed if the instrument creating the office authorises this”.

The issue concerning the employment status of an office holder was also considered by the High Court in the case of Murphy -v- The Minister for Social Welfare [1987] IR 295. In this case the applicant who had been appointed as an ordinary member of the Labour Court, sought an order that he was in insurable employment for the purposes of the Social Welfare (Consolidation) Act 1981. The applicant conceded that he was an office-holder but submitted on the authority of the Glover case that that the fact of him being an office holder did not exclude the possibility of his also having a contract with the Minister.Blaney J. held that: "I reject the applicant's first submission. I do not agree that he was employed under a contract of service. His counsel conceded that he was the holder of an office, and I think there is no doubt that he was. The provisions of s. 10 of the Industrial Relations Act, 1946, which set up the Labour Court, make this quite clear……. It seems to me that Glover's Case [1973] I.R. 388 is no authority for the proposition that the applicant appears to be putting forward, namely, that if he can establish that in addition to holding an office he also has a contract with the Minister, this would result in his employment being under a contract of service…… even if the applicant could establish some contract with the Minister, this would not in any way alter the fact that the origin of his employment was his appointment to a statutory office and not his entering into any contract of service”.

In the instant case, it is clear from the statute which governs the Respondent that the powers to make appointments to the Board, to remove members and extend their terms of appointment are vested in the Minister. The governing legislation also makes provision for the terms of appointment, remuneration and the range of duties and functions which are conferred on the Board by the Minister. In this regard, I note that there are a wide range of duties and functions conferred on the Board including the attendance at meetings and establishment of committees.

I am satisfied that the Complainant’s appointment to the Board was effected by the Minister in accordance with the relevant statutory provisions for a specified period which ran from 10 June, 2014 until 31 May, 2018. Moreover, I am satisfied that the Complainant’s term of appointment expired through the effluxion of time and that there was no statutory obligation on the Minister to re-appoint him for a further term.

I note the Complainant’s claim that he performed additional duties over and above those required under his terms of appointment and his contention that there were specific arrangements applicable to his appointment as a Board member which afforded him the status of an employee. Having regard to the evidence adduced, I am satisfied that all of the duties performed by the Complainant were expressly contemplated by the terms of his office as a member of the Board in accordance with the governing legislation. In the circumstances, I find that the Complainant’s status with the Respondent was that of an office holder and that he did not enter into, or work, under a contract of service with the Respondent during the period of his term of appointment as a member of the Board. I therefore, find that the Complainant was an office holder and was not an employee of the Respondent within the meaning of Section 1 of the Act. Accordingly, I find that I do not have jurisdiction to inquire into this complaint under the Act.

CA-00023643-002 - Complaint under the Protected Disclosures Act, 2014

The Law

Section 5 of the 2014 Act contains an exhaustive definition of “protected disclosure”.

“5. (1) For the purposes of this Act “protected disclosure” means, subject to subsection (6) 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) The motivation for making a disclosure is irrelevant to whether or not it is a protected disclosure.

(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.

Section 3 of the 2014 Act provides that:

“employer”, in relation to a worker, means, subject to subsection (2)(c)—

(a) in the case of an individual who is a worker by virtue of paragraph(a) of the definition of that term, the person with whom the worker entered into, or for whom the worker works or worked under, the contract of employment,

(b) in the case of an individual who is a worker by virtue of paragraph (b) of the definition of that term, the person with whom the worker entered into, or works or worked under, the contract,

(c) in the case of an individual who is a worker by virtue of paragraph (c) of the definition of that term—

(i) the person for whom the worker works or worked, or

(ii) the person by whom the individual is or was introduced or supplied to do the work,

or

(d) in the case of an individual who is a worker by virtue of paragraph (d) of the definition of that term, the person who provides or provided the work experience or training;

“worker” means an individual who—

(a) is an employee,

(b) entered into or works or worked under any other contract, whether express or implied and (if it is express) whether oral or in writing, whereby the individual undertook to do or perform (whether personally or otherwise) any work or services for another party to the contract for the purposes of that party’s business,

(c) works or worked for a person in circumstances in which—

(i) the individual is introduced or supplied to do the work by a third person, and

(ii) the terms on which the individual is engaged to do the work are or were in practice substantially determined not by the individual but by the person for whom the individual works or worked, by the third person or by both of them,

or

(d) [not relevant]

“penalisation” means any act or omission that affects a worker to the worker’s detriment, and in particular includes —

(a) suspension, lay-off or dismissal,

(b) demotion or loss of opportunity for promotion,

(c) transfer of duties, change of location of place of work, reduction in wages or change in working hours,

(d) the imposition or administering of any discipline, reprimand or other penalty (including a financial penalty),

(e) unfair treatment,

(f) coercion, intimidation or harassment,

(g) discrimination, disadvantage or unfair treatment,

(h) injury, damage or loss, and

(i) threat of reprisal”

The Complainant claims that he was subjected to penalisation contrary to Section 12 of the Protected Disclosures Act 2014 after having made a protected disclosure in relation to concerns which he raised with the Minister regarding the manner in which a competition for the appointment of members of the Respondent’s Disputes Resolution Committee had been conducted. The Complainant claims that the act which affected him to his detriment for having made this protected disclosure related to him not being re-appointed to the Board of the Respondent when his term of office expired on 31 May, 2018.

The Respondent does not dispute that the Complainant made a protected disclosure within the meaning of Section 5 of the Protected Disclosures Act 2014. However, the Respondent contends that the Complainant has impleaded the incorrect Respondent in relation to these proceedings on the basis that the Minister had the exclusive power to re-appoint the Complainant for a further term in accordance with the relevant provisions of the legislation which governs the statutory body. The Respondent contends that it did not make the decision upon which the claim of penalisation was grounded and therefore, it cannot be held liable for the alleged act of penalisation.

In considering this matter, I note that the Labour Court held in the case of Aidan & Henrietta McGrath Partnership -v- Anna Monaghan PDDI62 that: “The Court must first establish that a protected disclosure has been made before it can examine whether a penalisation within the meaning of the Act has occurred”. Therefore, the first issue I must address is whether or not the above-mentioned disclosure made by the Complainant constitutes a protected disclosure within the meaning of Section 5 of the Act. A “protected disclosure” is defined in Section 5(1) of the Act as the disclosure of “relevant information” made by a worker. To qualify as “relevant information”, a worker must reasonably believe that the information disclosed tends to show one or more “relevant wrongdoings” and the wrongdoing must come to the workers attention in connection with their employment. Having regard to the evidence adduced, I find that the disclosure made by the Complainant to the Minister on 3 November, 2014 in relation to the manner in which the competitive process for appointments to the Disputes Resolution Committee had been conducted constitutes a protected disclosure within the meaning of Section 5(3) of the Act.

I am satisfied that the Complainant qualifies as a “worker” for the purposes of the legislation by virtue of the provisions of paragraph (c) of the definition of that term as provided for in Section 3 of the Act. Therefore, by application of the provisions of paragraph (c) of the definition of the term “employer” within Section 3 of the Act, I am satisfied that the Complainant’s employer for the purposes of his complaint of penalisation is the named Respondent in these proceedings i.e. the statutory body of which he was appointed as a member of the Board.

Section 12 of the Act provides that an employer “shall not penalise or threaten penalisation against an employee, or cause or permit any other person to penaliseor threaten penalisation against an employee, for having made a protected disclosure“. It is clear from the wording of this provision that the legislation prohibits an employer from directly penalising an employee and/or from causing or permitting a third party to subject one of its workers to an act of penalisation. In the instant complaint, the Complainant claims that the detriment he suffered as a result of the act of penalisation was that he wasn’t re-appointed as a member of the Board for a further term. The Complainant claims that the Chairperson of the Board did not take appropriate measures to progress his request for re-appointment and that her lack of support ultimately resulted in him not being re-appointed to the Board following the expiry of his term on 31 May, 2018.

It is clear from the statute which governs the Respondent that the powers to appoint members to the Board and extend their terms of appointment are vested exclusively in the Minister. Therefore, the Respondent did not have any statutory powers or authority to extend the Complainant’s term of appointment following its expiry on 31 May, 2018. Consequently, I am satisfied that the Respondent did not make the decision in respect of which the alleged act of penalisation has been predicated in the circumstances of this complaint. Moreover, having regard to the evidence adduced, I do not accept that the actions of the Respondent or any of its servants, including the Chairperson, caused or permitted the alleged detriment complained of by the Complainant. Having regard to the foregoing, I find that the Respondent cannot be held liable for the alleged detriment which gave rise to the instant complaint.

Accordingly, I find that the Respondent did not subject the Complainant to penalisation contrary to Section 12(1) of the Act as a consequence of him having made a protected disclosure.

CA-00023643-001 – Complaint under the Unfair Dismissals Act 1977

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.

I find that the Complainant was not an employee of the Respondent within the meaning of Section 1 of the Act. Accordingly, I find that I do not have jurisdiction to inquire into this complaint under the Act.

CA-00023643-002 - Complaint under the Protected Disclosures Act, 2014

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.

I find that the Respondent did not subject the Complainant to penalisation contrary to Section 12(1) of the Act as a consequence of having made a protected disclosure. Accordingly, I find that the complaint made pursuant to the Protected Disclosures Act is not well founded.

Protected Disclosures Act 2014 – Section 5 – Protected Disclosure – Penalisation - Unfair Dismissals Act 1977 – Section 1 – Contract of Service - Jurisdiction