ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00026073
Parties:
| Complainant | Respondent |
Anonymised Parties | An Accountant | A Charity |
Complaint:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Schedule 2 of the Criminal Justice Act 2011 | CA-00032950-001 | 12/12/2019 |
Date of Adjudication Hearing: 18/02/2020
Workplace Relations Commission Adjudication Officer: Catherine Byrne
Procedure:
This complaint was submitted to the WRC on December 12th 2019 and, in accordance with section 41 of the Workplace Relations Act 2015, it was assigned to me by the Director General. I conducted a hearing on February 18th 2020 and gave the parties an opportunity to be heard and to present evidence relevant to the complaint.
The complainant was represented by Mr Jason Maher BL, instructed by Mr Michael Morrissey, Solicitor. The respondent was represented by Ms Mary Kirwan, HR Consultant, and she was accompanied by the organisation’s Chief Executive Officer (“CEO”), the Chairperson of the Board of Directors and another member of the Board.
Background:
The complainant is a qualified accountant and he commenced employment with the respondent on March 4th 2019 as the Head of Finance. He was dismissed five months later and he was paid one month’s wages in lieu of notice. The complainant’s case is that he was dismissed because he made a protected disclosure by reporting certain alleged irregularities including breaches of the Criminal Justice Act 2011. The respondent’s position is that the complainant was dismissed because he was not suitable for the job and his employment was terminated before the end of his probation. Chronology of Events Leading to the Complainant’s Dismissal June 4th 2019 The CEO had concerns about the complainant’s performance, particularly his failure to provide completed accounts for 2018 for the Board of Directors. The complainant attended a “support and supervision meeting” with the CEO at which he was informed about the aspects of his performance that were considered to be dissatisfactory. A note of this meeting was submitted in evidence. June 11th 2019 At a meeting of the Finance and General Purpose sub-committee of the Board, the external auditors expressed concerns about the “level of competence of the new Head of Finance.” Details of the comments of the auditor’s representative were submitted in evidence. June 21st 2019 A second support and supervision meeting with the CEO took place, following which the CEO summarised the priority areas that he expected the complainant to focus on. Another meeting was scheduled for June 25th, which the CEO said was “to be in the context of your probationary period” and the complainant was invited to be accompanied at that meeting. June 25th 2019 The complainant attended a meeting about his performance. He complained that he didn’t realise that this was a disciplinary meeting and it was adjourned and re-scheduled for July 2nd. June 27th 2019 The CEO wrote to the complainant setting out the aspects of the complainant’s performance that he was concerned about and he confirmed that a disciplinary meeting would take place on July 2nd. This meeting did not take place because the complainant was absent due to stress. July 16th 2019 Following a series of emails between the complainant and the CEO which the CEO found disrespectful and insubordinate, the complainant was suspended from work. On the same day, the complainant wrote to the Treasurer of the charity, setting out his concerns about what he believed to be certain breaches of Revenue regulations and breaches of the Companies Act 2014 and the Criminal Justice Act 2017. July 17th 2019 The complainant entered the workplace, despite clear instructions in the letter confirming his suspension, that he was not permitted to do so. July 19th 2019 The disciplinary hearing scheduled for July 2nd took place on July 19th. A note of the meeting was submitted at the hearing. On the same day, the complainant wrote to the then Chairperson of the Board of Directors to inform her about 17 issues related to the organisation’s finances that he was concerned about. He said that he was raising his concerns under the Protected Disclosures Act 2014. July 30th 2019 Following an investigation by the Chairperson and the Treasurer, a report was produced that addressed each of the issues raised by the complainant. The report concluded that there was no evidence to support the concerns that he raised, apart from the purchase of a bicycle under the Bike to Work Scheme. The investigators concluded that this would be addressed directly with the employee concerned. August 2nd 2019 The complainant was dismissed. In the letter confirming his dismissal, the CEO said that he had failed his probationary period due to “major under performance” which was “allied to the gross insubordination demonstrated by you, particularly during the last number of weeks.” August 23rd 2019 A meeting to hear the complainant’s appeal of his dismissal was arranged; however, he did not attend. |
Summary of Complainant’s Case:
On the form he submitted to the WRC, the complainant alleges that he was penalised for reporting breaches of the Criminal Justice Act 2011. He also claimed that he reported breaches of section 118 of the Taxes Consolidation Act 1997 in respect of tax laws and a breach of sections 366 and 282 of the Companies Act. In a letter dated July 19th 2019 to the then Chairperson, the complainant set out 17 issues of concern. These generally relate to postings to the accounts package, expenses claims, use of the company’s credit card, reconciliation of creditors’ and debtors’ statements and an incomplete record of bank statements. Mr Maher summarised the complainant’s case. He said that when the complainant started work with the respondent, he got no induction, files were transferred to him late, certain matters concerning deadlines were not explained to him and information was not available so that he could manage the audit of the 2018 accounts. Mr Maher said that the complainant was expected to reconcile the 2018 accounts without the reconciliation of debtors and creditors ledgers and he claimed that there was an inadequate explanation for an error in the accounts for 2017. Mr Maher submitted that when the complainant attempted to point out problems to the CEO, he was accused of insubordination and, on July 16th, he was suspended. On July 19th, he made a protected disclosure in writing to the Chairperson of the Board of Directors. It appears that, for the early part of his employment with the respondent, the complainant had a difficult relationship with the accounts administrator, whose role was to assist him. He claimed at the hearing that this person, although she worked with the organisation for 20 years, responded “I don’t know” to any question he asked. In May 2019, the administrator submitted a grievance regarding the complainant’s conduct and she went absent due to illness, leaving him without any support. The complainant submits that he was dismissed for making a protected disclosure and that his dismissal was unfair. He also complains that, before he was dismissed, he was not given an opportunity to respond to the findings of the investigation into the protected disclosures that he raised. On behalf of the complainant, Mr Maher referred to the following legal precedents in support of his client’s assertion regarding his dismissal: Darnton v University of Surry [2003] ICE 615 This case demonstrates the requirement for a complainant to show that he or she must have a reasonable belief that a relevant wrongdoing has occurred in connection with his or her employment. Babula v Waltham Forest College [2007] EWCA Civ 174 Here, the English Court of Appeal determined that the test for reasonable belief is both subjective and objective. Bolton School v Evans [2006] IRLR 500 This case focuses on the question of whether there is a requirement for a complainant to show that, in his or her reasonable belief, the information disclosed in a protected disclosure points to a relevant wrongdoing. The Court found that the threshold for proving this “reasonable belief” is low. Aidan & Henrietta McGrath Partnership v Anna Monaghan PD15/I In this case at the Labour Court, the Court held that Ms Monaghan would not have been suspended if she had not made a protected disclosure. |
Summary of Respondent’s Case:
On behalf of the respondent, Ms Kirwan said that, before the complainant joined the organisation, a comprehensive handover document was prepared by the previous Head of Finance. A copy of this document was submitted in evidence and it shows that the previous incumbent prepared notes regarding the job, under 23 separate headings. The respondent agreed to pay five days’ wages for this person to be available to the complainant so that he could get a one to one handover if he felt he needed it. The complainant did not avail of this facility. In the early days of his employment, the complainant had the opportunity to meet with cost-centre managers and he had a long meeting with the CEO who outlined the work issues that he considered to be a priority for the role. Between April and July 2019, the charity’s treasurer and external auditor tried to obtain completed accounts from the complainant so that they could be presented to the Board of Directors at their AGM. In the end, when the accounts were not available on time for the AGM, the treasurer completed the task with the assistance of the external auditor. Ms Kirwan summarised the support and supervision meetings that took place on June 4th and 21st, and the meeting on June 25th, the purpose of which was to discuss the complainant’s performance during his probation. Details of the email correspondence between the complainant and the CEO were submitted in the respondent’s book of papers. These show the complainant’s accusative and demanding tone in his communications with his boss. The complainant was suspended on July 16th and a disciplinary meeting was held on July 19th, at which the following issues were discussed: 1 Production of the audited accounts and Trustee Report for 2018. 2 No evidence of the preparation of a work plan to identify key tasks and events for the year. 3 Managing the 2019 budget. 4 Completing a first set of management accounts. 5 No involvement in the preparation of a certain report which is a core task for the Head of Finance. 6 No work done on the compliance aspect of the role of Head of Finance. 7 The complainant appeared to have a skills deficit in relation to technology. 8 Lack of communications skills and failure to respond adequately to requests for information about activities. Following the disciplinary meeting, the CEO concluded that the complainant had not successfully completed his probation and his employment was terminated on August 2nd. |
Findings and Conclusions:
The Applicable Law Section 20 of the Criminal Justice Act 2011 (“the Act”) provides that an employer shall not penalise an employee who discloses information about a relevant offence: (1) 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 - (a) for making a disclosure or for giving evidence in relation to such disclosure in any proceedings relating to a relevant offence, or (b) for giving notice of his or her intention to do so. The definition of “disclosure” is set out at sub-section (6) of section 20 and provides that, “disclosure,” in relation to an employee, means a disclosure by the employee to a member of the Garda Síochána of information which he or she knows or believes might be of material assistance in – (a) preventing the commission by any other person of a relevant offence, or (b) securing the apprehension, prosecution or conviction of any other person for a relevant offence. Conclusion I note that, in accordance with section 20 of the Criminal Justice Act 2011 which is referred to above, an employer may not penalise an employee who makes a disclosure about certain matters in the workplace. The Act makes no reference to a protected disclosure. It is apparent that, before he was dismissed, the complainant did not disclose information to An Garda Síochána in relation to any offence that he perceived to have occurred in his workplace. At the hearing, he said that he reported certain matters to the Gardaí after he was dismissed. His argument that he was dismissed because he made a protected disclosure therefore, does not stand up. Aside from this conclusion, I note that the 17 issues that the complainant raised in his letter to the Chairperson on July 19th 2019 were thoroughly investigated. Apart from a possible breach of Revenue rules related to the Bike to Work Scheme, the investigation concluded that there was no evidence to support the complainant’s allegations. |
Decision:
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 have concluded that the complainant has not established that he made a disclosure in accordance with the Criminal Justice Act 2011. I decide therefore that his complaint under the Criminal Justice Act 2011 is not well founded and is not upheld. |
Dated: 2 March 2020
Workplace Relations Commission Adjudication Officer: Catherine Byrne
Key Words:
Disclosure under the Criminal Justice Act 2011 |