Complainant

Respondent

Anonymised Parties

An Assistant Retail Manager

A Department Store

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts

CA-00031185-001

28/09/2019

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

CA-00031237-001

02/10/2019

The issues in contention concern the alleged Unfair Dismissal of a Retail Assistant Manager by a Department Store.

1:1         CA-00031237-001 – Unfair Dismissals Act Complaint

The Complainant maintained that she made a Protected Disclosure in relation to Health and Safety (27th June) and Working time issues on the 14th August 2019.

The making of a Protected Disclosure, under Section 6:2(ba) allows for a claim to be made without the twelve-month service requirement.

The Complainant was clearly penalised for making these Disclosures by being dismissed.

1:2       CA-00031185-001- Industrial Relations Act, 1969 complaint.

The Complainant was dismissed at a meeting on the 27th September 2019 without any proper procedures, warnings or natural justice. The allegations made against her were baseless and had no truth.

2:1         CA-00031237-001 – Unfair Dismissals Act Complaint

The Complainant does not have the required employment service to bring a Complaint under the UD Act,1977. Her suggestions of having made a Protected Disclosure are without any foundation – the first issue concerned was a Health and Safety Audit carried out by the Respondent. The results of the Audit were going to be made available to the Respondent in any event. The Complainant’s e mail was simply a premature note issued prior to the Auditor having submitted his formal Report.

In addition, as a member of Store Management there was nothing in the E mail that was outside her duties. Section 5 (8) of the Act applies

(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.

As regards the Working Time issues this was again within her remit and could not be described, in any manner, as a Protected Disclosure.

Accordingly, the UD Act ,1977 cannot apply and the claim has to fail on Service Grounds.

2:2       CA-00031185-001- Industrial Relations Act, 1969 complaint.

The Complainant was employed on a Probation basis. The employment relationship did not work out as happily as hoped and the Respondent Employer ended the employment on the 27th September due to the failure of the employee to “carry out her duties to the required standard.”.

There was nothing untoward in the process. It was a probation situation that came to a natural end.

The Complainant was offered an opportunity to Appeal the Dismissal Decision. She did not avail of the Appeal offered.

3:1         CA-00031237-001 – Unfair Dismissals Act, 1977 Complaint

The Complainant has less than 12 months completed employment service. Her claim under the Unfair Dismissals Act,1977 is based on the provisions of Section 6, Sub Section 2 (ba) - the employee having made a protected disclosure and the follow-on exemption from the 12 months service requirement in Section 6, Sub Section 2D.

The definition of Protected Disclosure is as given by the Protected Disclosures Act, 2014.

Protected disclosures

5. (1) For the purposes of this Act “protected disclosure” means, subject to F1 [subsections (6)and (7A)]and sections 17and 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, 9or 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) F1 [ Subject to subsection (7A) , the motivation ] for making a disclosure is irrelevant to whether or not it is a protected disclosure.

(7A) Where a worker, referred to in subsection (1) , makes a disclosure of relevant information in the manner specified by that subsection, and in respect of that disclosure of relevant information it is alleged that the disclosure concerned the unlawful acquisition, use or disclosure of a trade secret (within the meaning of the European Union (Protection of Trade Secrets) Regulations 2018 ( S.I. No. 188 of 2018 )), such disclosure is a protected disclosure provided that the worker has acted for the purposes of protecting the general public interest. ]

(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 5(8) above provides the statutory presumption that a disclosure is a protected disclosure, unless the “contrary is proved”. The Complainant asserts that the protected disclosure was the E mails sent on the 27th June 2019 and the 14th August to the Regional Manager, Mr. XK.

Having examined the E Mails and heard the Oral evidence from the Parties it was clear that they were related to the Health and Safety Audit and an issue concerning the correct work breaks for Shop Workers. A Protected Disclosure must concern “a relevant wrongdoing”. In this case the findings of a Health and Safety Audit commissioned by the Respondent Senior Management and which were due to be submitted to the Shop Owners, once formally written up, do not constitute “a relevant wrong doing”.

Even taking Sub Section 5:3 (d)

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

as a basis, the issue of preliminary findings from an Audit Report being raised by a Manager are not a “Protected disclosure”. The issue of the Audit Report and how it was going to be handled was a matter for the Future Tense in this case. There was no possible valid suggestion or proof that a Relevant Wrong Doing was going to occur.

Taking all these factors into account I did not find that a Protected Disclosure took place. Accordingly the provisions of Section 6, Sub Section 2 (ba) of the Unfair Dismissals Act do not apply.

Accordingly, the Complaint must fail for want of the required 12 months employment service.

3:2       CA-00031185-001- Industrial Relations Act, 1969 complaint.

From the evidence presented, both Orally and in Writing, it was clear that the Employment relationship had not worked out. The Complainant made it clear that she was unhappy and was actively looking out for another position. The Respondent felt that the previous Retail experience of the Complainant which was outside of the Provincial Town Department Store area had not transferred satisfactorily to the Respondent Retail environment. All things considered it was best to end the relationship.

There was no doubt that SI 146 of 2000 - Code of Practice on Grievance and Disciplinary Procedures was probably not followed exactly. However, in general there were no major flaws in what was a Probationary process. The offer of an Appeal to the Overall Shop Owner was not taken up. The speedy return (within three weeks) to full time work of the Complainant was also relevant. There was a degree of vagueness as to when (pre or post Dismissal) this new position was actually applied for.

On overall balance and having reviewed all the evidence I came to the view that there was really no substance to the Complaint that would warrant an Industrial Relations Act, 1969 recommendation.

Accordingly, the Complaint is deemed legally Not Well Founded and I formally Recommend that it is dismissed.

Act

Complaint/Dispute Reference No.

Summary Decision / Recommendation

Please refer to Section three above for detailed Reasoning.

Complaint seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts

CA-00031185-001

Complaint Not well Founded.

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

CA-00031237-001

Complaint fails to qualify as a Protected Disclosure. Accordingly, the Complaint does not have the required 12 months service. Complaint fails on Time Grounds.