PDD206

1.Appeal of Adjudication Officer Decision no.ADJ-00006471 CA-00008739-004

BACKGROUND:

2.The Employee appealed the Decision of the Adjudication Officer to the Labour Court on 27 July 2018. A Labour Court hearing took place on 11 June 2019, 3 and 4 October 2020. The following is the Court's Determination:

DETERMINATION:

This is an appeal by Ms Frances Murphy against the Decision of an Adjudication Officer ADJ-00006471, CA-00008739-004, in her claim of penalisation against her former employer, Connemara Marble Industries Limited, under Section 12(1) of the Protected Disclosures Act, 2014 (the 2014 Act). The Adjudication Officer held that Ms Murphy did not make a protected disclosure as defined by the 2014 Act and accordingly held that her claim was not well founded.
For ease of reference the parties are given the same designation as they had at first instance. Hence, Ms Frances Murphy will be referred to as “the Complainant” and Connemara Marble Industries Limited will be referred to as “the Respondent”.

The claim under the 2014 Act was referred to the Workplace Relations Commission on 20th January 2017.

Background

The Complainant worked in the family business since the age of 13 and was employed from 1st January 2011 until 21st February 2017. Her roles in the business were that of Sales Assistant, Factory Tour Guide, Tea Room Supervisor, Silver Soldering, and Jewellery Designer. She was paid €550.00 per week for working 25 hours per week, plus an annual bonus payment of €2,900 paid in December 2015.

She inherited a 1/6^thholding in the business after her father died on 7th August 2015. The Directors of the Company, Mr Ambrose Joyce, Managing Director and Ms Grace Keating, Operations Director, also inherited a 1/6^thshare in the business and managed the day-to-day running of the business. Both are siblings of the Complainant. Her remaining three siblings Mr Michael Joyce, Ms Tessie Joyce, and Ms Anne Marie Lally also inherited a share in the business and were employees of the Company.

Difficulties arose between the Complainant and her siblings in the period from December 2015. On 14th November 2016, she received a letter from Mr Ambrose Joyce, warning her of disciplinary action if she continued to refuse instructions from the Company Directors.

Following an incident which occurred on the Company premises on 18th November 2016, the Complainant received a letter from the Respondent’s Solicitors placing her on suspension pending an investigation into allegedly engaging in activities which were detrimental to the Company with the intention of attempting to shut the business down.

The Complainant has a separate claim of unfair dismissal under the Unfair Dismissals Act and a claim for minimum notice. Her legal representative confirmed to the Court that her claim of unfair dismissal under the Unfair Dismissals Act, was not related to the making of a protected disclosure. The Court notes that the claim under the 2014 Act was referred to the Workplace Relations Commission prior to the termination of her employment.

Summary of the Complainant’s Case

Mr Alastair Purdy, Alastair Purdy & Co. Solicitors, on behalf of the Complainant submitted that the Complainant’s suspension from her employment on 18th November 2016 arose from a protected disclosure she made in April/May 2016 to two Directors of the Company, Mr Ambrose Joyce and Ms Grace Keating, regarding an inappropriate use of company funds and improper accounting for cash in the business. He said that on 1st November 2016 the Complainant refused to operate a cash till and her refusal to work the “cash till” amounted to a protected disclosure. He said that as a shareholder as well as an employee she did not want to be responsible for any fraudulent activities, such as the under declaration of company funds and/or the facilitation of cash payments to bus drivers.

Mr Purdy alleged that as a result of making a protected disclosure the Complainant was subjected to the following acts of penalisation:-

• i.On 1st November 2016, a cover was placed over her till by Ms Tessie Joyce who instructed customers to pay at her own till.
  ii.On 3rd November 2016, the Complainant was locked out of the office by the Directors.
  iii.On 14th November 2016, she received a warning that she would be subjected to disciplinary procedures if she continued to refuse instructions from the Directors.
  iv.On 18th November 2016, she was directed not to work at her usual work station.
  v.She was furnished with a letter of suspension dated 18th November 2016.

Ms Lauren Tennyson, B.L., instructed by DWF Solicitors, on behalf of the Respondent, disputed the contention that the Complainant made a protected disclosure within the meaning of the 2014 Act and submitted that the Complainant’s complaint under the 2014 Act is a fabrication which simply does not add up.

Ms Tennyson said that in October 2016 the Respondent became aware that the Complainant was not happy and was becoming disruptive in the workplace. It became apparent that she was unwilling to take direction from the Directors, on 14th November 2016 she refused to perform one of her principle duties of employment, silver soldering.

On 2nd November 2016, Ms Tessie Joyce, a sibling of the Complainant and employee of the Respondent, observed the Complainant assisting Mr Fergus Lally in removing company property, including historic company accounts from the “Luckpenny” outhouse building.

She said that some days later on 18th November 2016, the situation became very serious and sibling relations worsened when the Complainant and her sister, Ms. Anne Marie Lally and their respective husbands, orchestrated an attack on the company premises and blocked the entrances and exits with their vehicles. This incident took place just before a CIE tour was due to arrive which had to be cancelled and the business was closed for the remainder of the day. The timing of this had the effect of targeting the company’s largest customer, CIE Tours International, which represents up to 40% of the business. Mr Ambrose Joyce called An Garda Siochana for assistance and whilst he was on the phone in his office, the Complainant was in the shop talking about Ambrose and saying,“the little coward hiding away, f….ing coward, where’s the coward now”.

Ms Tennyson said that the Gardai attended and cautioned the Complainant’s husband Mr Joe Murphy, and instructed him, Ms Anne Marie Lally and her husband Mr Fergus Lally, to remove themselves from the premises. Eventually they all left but they threatened that they would come back to protest.

Following this incident, the Complainant was suspended from her employment, on full pay, on the 18th November 2016, pending investigation of the matter. Unfortunately, relations between the parties fell apart after this and the parties did not resolve matters.

On 24th November 2016, the Complainant’s solicitor, wrote to Mr Ambrose Joyce advising that“any attempt by the company or representative of the company to carry out any investigation will be vigorously defended by our client, including, if necessary, making an application to the High Court for interlocutory relief”.This letter also stated that“the real reason for her suspension is the fact that she made a protected disclosure to the two Directors of the company regarding the inappropriate use of funds.”

Ms Tennyson said that this was the first time the Complainant referred to a protected disclosure having been made and that the said alleged protected disclosure related to “inappropriate use of company funds”. She submitted that the matter was clarified to the Complainant by the Respondent’s accountant as being the Director’s wages.

Therefore, Ms Tennyson argued that the Complainant has not adduced any evidence that demonstrated a link between her suspension and purported dismissal with the making of a protected disclosure and that it was wholly nonsensical on the part of the Complainant to link her suspension to anything other than the attack conducted on 18th November 2016.

Ms Tennyson submitted that the WRC form dated 20th January 2017 which stated “on the 1st November the claimant refused to work the second “cash” till” was the first time where any allegation about a cash till was made and the Complainant’s refusal to work on one. Ms Tennyson submitted that refusing to work a cash till does not amount to a protected disclosure that falls within the definition set out in Section 5 of the 2014 Act. Furthermore, the Directors of the company were not present at the company on the date in November when the alleged protected disclosure was made, as Mr Ambrose Joyce was in Central America and Ms Grace Keating was in hospital. Finally, Ms Tennyson submitted that the protected disclosure claim was motivated by malice against her siblings who continued to run the family business with a view to liquidating her shareholding.

The Complainant was issued with her P45 on 21st February 2017 as the situation between the parties was not resolved. The Respondent believed that the Complainant had no intention of returning to the workplace and that she had in fact resigned. It was reinforced by this belief when the Complainant submitted a claim to the WRC claiming that she had been constructively dismissed. This complaint was later withdrawn on 12th April 2017. A subsequent claim, alleging that she had been unfairly dismissed by the Respondent, was referred to the WRC on 5th April 2017.

Summary of Witness Testimony

Ms Frances Murphy’s evidence

The Complainant’s evidence can be summarised as follows:-

The Complainant told the Court that she had worked in the family business since she was 13 years of age in one capacity or another. She undertook a Diploma in Gemmology in NUIG and took seven years off to care for her son. She returned on 1st January 2011 to work mornings only, which she worked until 21st February 2017 when she was dismissed. She said that she reported to her father before his death. She said that her brother and sister, Ambrose and Grace, ran the Company. She said that there were approximately 23 employees during the summer months and in the winter as few as 3 employees.

On the death of her father she inherited 1/6^thof the business and spoke to her brother Ambrose about running the business. She said that she wished to cease the practice of paying bus drivers a 10% share of the sales they brought in and she wished to formalise the running of the business going forward and ensure it was revenue compliant.

She said that the Company had a Revenue Audit in May 2015 at which time the Company did not have a proper till system in place and the auditors advised the Respondent to introduce a proper system and to discontinue the practice of putting cash in one till and wooden boxes. Therefore, new tills were purchased, and she was instructed to put all credit cards in one till and a percentage of such purchases in another cash till. At this point she said that she informed Ambrose that she did not wish to continue this practice as it was not revenue compliant. She said that he told her that if she did not do so there would be no business and the drivers would advise the tourists to buy their jewellery elsewhere. She agreed to comply at the time.

The Complainant said that she was out sick for a few weeks and returned to work on 1st November 2016 and decided not to use the cash till anymore. She said that Tessie was in the shop at the time as Ambrose and Grace were on annual leave and sick leave respectively. She said that Tessie knew she was not putting money in the cash till at the time. She said that a list of purchases by tourists was kept in order to calculate the payments to be made to the Drivers.

The witness said that after she made her decision not to use the cash till on 1st November 2016, a shopping bag was placed over her till and Tessie advised customers to use a different till to make their purchases. Therefore, she could not work behind the till. She told the Court that Tessie put the cash in a separate box underneath the till.

On 3rd November 2016, she said that she was locked out of the office and, therefore, she had to put her coat and handbag under the counter. She told the Court that Ambrose returned home from holiday in South America earlier than planned, she surmised that this was because she was refusing to use the cash till. She said that when she arrived into work on 14th November 2016 Ambrose told her that she was to go to the factory to do some silver soldering work. She said that she was not appropriately dressed for such work and in any event soldering work was normally done after Christmas when there were no tourist buses and the shop was closed. She said that she refused to do the soldering work that day, and she suspected that the reason he had asked her to do the soldering work was to get her out of the shop. When she refused Ambrose said that’s fine, I will take note of that. Later that day she received a letter from Ambrose threatening disciplinary action for refusing a work instruction. This letter also outlined the policy on taking breaks. She said that she only ever took breaks when business was quiet.

The Complainant said that Mr Niall Keating, Grace’s husband, was in the shop every morning she arrived to work after 1st November 2016. She said that this puzzled her as she was not aware that he was employed by the Respondent. She said that he would stand behind her at the counter and that this intimidated her.

She recounted the events of 18th November 2016 and said that when she turned up for work that morning, Niall Keating was there and when she went to put her coat in the office it was locked. She said that he said to her that she would not be working in the shop that day and told her she was ‘full of s…t’and that that was why she was in the Galway Clinic. She was upset by this and rang her husband who along with Anne Marie Lally and her husband came to the business.

She said that when they arrived Ambrose rang the Gardaí from his office. A big argument ensued, and she was standing there with her phone recording the scene. She said that Niall stood at the door and would not let her husband in. She said that her husband then pushed in saying ‘you are throwing Frances out because she would not put cash in the box’. She said that Niall blocked her from entering the Teahouse when she wanted to use the toilet. The Garda told Ambrose to let her in. She said that when the Garda was leaving, he told her that she could contact him if she needed further assistance.

The Complainant told the Court that three days later she received a letter of suspension from the Respondent’s solicitors and was instructed not to contact her family.

In cross-examination, the Complainant said that she wanted to move forward in the business and told Ambrose in April 2016 that she did not want to be part of a fraudulent business and that it was the perfect opportunity to run the business properly. She said that she wanted to cease the practice of paying Drivers for the business they brought in and instead wanted to give them a Christmas present.

She said it was 15 months after her father’s death, and she had no details on the running of the business. The Complainant was questioned on when she made it known to the Respondent that she did not want to be part of a fraudulent business. It was put to her that the first time this was raised was at the hearing before the Adjudication Officer. She denied this. She said that it was not until she went to her solicitor that she heard the expression “protected disclosure”. She accepted that she did not say that she would not operate the cash till but that she acted on it. She accepted that she did not speak to Ambrose or Grace on 1st November 2016 but said that she acted upon her decision not to use the cash till. The Complainant also agreed that Ambrose never said that he noticed that she was not using the cash till and never made an issue of it. She said that from April to the end of October 2016 she continued to operate the tills as normal, however, she discovered that she was not being paid her correct pay, as €15.00 per week had been deducted from her wages for a number of years. Upon enquiring of the reasons for this deduction she was informed by Mr Ambrose Joyce that this was to keep the “cash up” in the Company. He told her that that if she looked for the money back, she would regret it.

The Complainant said that she worked on different tills at different times but that she normally worked at a specific one. She accepted that others worked on that till when she was not there in the afternoons.

With reference to her statement that she was locked out of the office on 3rd November, she was questioned about the events of 2nd November 2016, when it was put to the Complainant that she assisted Mr Fergus Lally with access to the “Luckpenny” building, where it was alleged that he removed documents. The Complainant denied the allegation and said that she was at a hospital appointment on 2nd November and had not gone to work that day. She said that there were no documents in that building and there was no mention of this in the warning letter she received from Ambrose on 14th November 2016. She said that the only document she took was a sheet of paper with details of her earnings on it.

With regard to the events of 18th November 2016, she said that Niall was intimidating, laughing and joking and she was under the impression that he was taking instructions from Ambrose. She denied the accusation that Niall had overheard her ask her husband over the phone to block the entrance to the tearoom. She also denied calling Ambrose a coward. She denied that she said that she wanted to buy out her 1/6^thshare.

The witness was asked about the letters dated 18th November 2016 from the Respondent’s Solicitors which were sent to her. She accepted that she had copied them and left them in the shop where they could be seen by other staff.

Summary of Mr Ambrose Joyce’s Evidence

Mr Ambrose Joyce gave evidence on behalf of the Respondent. He told the Court that he is the Managing Director of the company, a position he took over on the death of his father in August 2015. He said that he was formally appointed to that role at an AGM in August 2016.

The witness recounted the events which took place involving the Complainant, from 7th October 2016 until the termination of her employment on 21st February 2017.

He said that on 7th October 2016 the Complainant had a conversation with him and Ms Grace Keating, Operations Director, regarding her wages. The Complainant told both Directors that she had discovered that she was being paid €15.00 less in her net pay than she claimed she was entitled to, and she was upset about this as she claimed that this had been ongoing for years. She was paying herself €450.00 per week when she should have been paid €465.00. He told her he would look into the matter. He told the Court that he was shocked to hear this as she paid herself from cash which was available in a drawer in the office and her payslips were available for her to examine. Mr Joyce said that the Complainant was aggressive about this issue and stated that her husband would deal with it. He said that she wanted to be bought out of the company and it was not worth her while working in the company. He said that originally when the Complainant commenced working in the company in 2011, she was paid €550.00 gross and a net wage of €450.00 per week. He said that he did check into the matter and discovered that with adjustments in tax allowances she was entitled to more than €450.00 net per week for some time. He denied saying that the €15.00 was to keep cash up in the company.

After the 7th October 2016, the Complainant went on sick leave. He said that on 17th October 2016 Ms Lally was in his office photocopying company documents. On 19th October 2016, he said that Ms Lally spoke to him about details in the company accounts regarding Directors’ renumeration. She told him that she and the Complainant had learnt that Directors’ renumeration amounted to €95,000 in 2015, with a slightly lesser amount for 2014. Ms Lally spoke to him and told him that they had seen the details on the company accounts and were of the view that it referred to bonuses paid to the Directors. He said that he tried to explain that the details did not relate solely to bonuses but included salaries also. He said that as the Complainant was on sick leave at the time, Ms Lally telephoned her, and Mr Joyce tried to explain matters to her, but she refused to talk to him and ended the call. The witness said that on 20th October 2016, he received a solicitor’s letter on behalf of the Complainant and her sister, Ms Lally. At the same time, he also received a letter directly from the Complainant and her sister, Ms Lally. These letters questioned details of remuneration paid to Directors. He said that he was upset that his sisters would think they the Directors would pay themselves large bonuses. He asked his Accountant to write to them and explain matters, which he did on 27th October 2016 and stated that the payments were the cumulative total of Directors salaries and bonuses for all three serving Directors for the periods 2014 and 2015. Mr Joyce said that he expected that that would be the end of the matter.

The witness said that on 27th October 2016 he went on leave to Central America and was due to return on 21st November 2016. As Ms Keating had been in hospital with a heart condition and the Complainant was out sick, he said that he asked Ms Keating’s husband, Niall, to step in and assist while he was away. Ms Keating could not drive at this time due to her condition, and Ms Tessie Joyce required a lift to work, therefore Mr Keating drove them to work. He was also required to move heavy gates and shutters at opening and closing times. Therefore, Mr Joyce said that Mr Keating was employed from 24th October until 25th November 2016.

The witness said that the Complainant returned to work from sick leave on 1st November 2016. He said that he spoke to Ms Tessie Joyce on 2nd November 2016 and she told him that the Complainant had taken the keys to the “Luckpenny” store and allowed Mr Fergus Lally into the store, and that Mr Lally had removed boxes from the store. The witness said that he knew from the description of those boxes that they contained company documents. He said he was concerned as he knew that Ms Lally had photocopied documents from his office and now Mr Lally was taking company documents. He said that he asked Mr Keating to lock his office door, which was the inner office from the general office.

Mr Joyce said that he returned from holidays on 10th November 2016, earlier than planned as Ms Keating was very ill and was in hospital. There were no Directors in the company, and he was concerned about matters in the workplace. He said that the next day when he attended at work, he noticed that the Complainant was at the “top of the shop” on her iPad, on her phone and had a radio playing. He said that he spoke to her about what she was doing, but she would not answer him. He said to her that it must be boring for you to be doing nothing and asked her to do silver soldering work in the workshop. He said that she looked at him and replied, ‘you’re not my boss, you will never be, you can’t tell me what to do’.

Mr Joyce said that it was normal during the winter months, from end of October to 17th March, for the Complainant and himself to do silver soldering work, as preparation for the factory, where the jewellery is made. Two other employees were dependent on this soldering, so there was no work for them as the Complainant was not doing her work.

He said that on the morning of 10th November 2016, he went to the Museum with Mr Keating and while there the Complainant came in at 9.45am and said it was tea time. He told her it was too early, and she replied that he was not her boss and never would be.

He said that he went to his office and rang Galway Conflict Management Company for advice on how to handle the situation. He was advised to write to the Complainant which he duly did on 14th November 2016 and explained to her that as an employee of the company she was obliged to take instructions and warned her that if she continued to refuse to take instructions, she would be subject to disciplinary procedures up to and including dismissal. He said that he received no response. He said that the Complainant made copies of the letter and left them around for other members of staff to see them. He said that he then tried to speak to the Complainant, but she refused to speak to him.

The witness recounted the events of 18th November 2016. He said that they were expecting a CIE Tour Bus to arrive that day. He asked Mr Keating to meet and greet the tourists. He said that while he was in the Tearoom, he received a call from Mr Keating to say that he had heard the Complainant telephone her husband and ask him to come to the company and to block the entrance to the Tearoom. Then Ms Tessie Joyce came to him to say that Mr Lally had blocked the entrance to the Tearoom with his van. He said that the Complainant was shouting and saying that they were going to close the business down and said that her husband was on his way. An altercation occurred with Ms Lally, who physically assaulted him. He said that he then telephoned CIE Tours and told them not to come to the company due to an ongoing family crisis. He then went to his office and telephoned the Gardai and told them there was an attack on the company and he had been assaulted. He said that as he was on the phone the Complainant said, ‘where’s the f……g coward hiding now’. She pushed in the door to his office and said, ‘there’s the coward now’and pushed a phone in his face.

He said that he then went to the factory. All the employees there were shocked. The Complainant was shouting ‘where’s our inheritance’and ‘we’re closing the business down’. He said the Complainant, her husband, Ms Lally and her husband went into the shop and knocked some stock to the ground. The witness said that at this point the Complainant was saying ‘you will do no more business, I did not get my inheritance, you are paying yourself and Grace large bonuses, we are going to close the business and we will protest this place every day’. The Gardai arrived and interviewed everyone involved and asked them to leave the shop. He said that Mr Murphy started banging on the Tearoom door, which the employees inside had locked as there were terrified. Mr Keating was inside. Mr Joyce said that he asked the Complainant what she wanted, and she said that she needed to use the toilet, so he asked Mr Keating to let her in. Mr Murphy followed her in and said that he was a 1/12^thshareholder and he was not leaving.

Mr Joyce said that he told the Gardai that he was the Managing Director. They asked Mr Murphy to leave and told him that they would arrest him if he did not leave and cautioned him.

Mr Joyce said that he had an appointment that day to see Galway Conflict Management and his solicitor. He attended those appointments. His solicitor then wrote a letter to the Complainant. This letter outlined her refusal to carry out instructions; copying the warning letter and leaving it for staff to see; and her involvement in the protest on 18th November 2016. The letter proceeded to inform her that she was suspended pending an investigation and ordering her not to attend the company premises. An undertaking by the Complainant not to attend the company premises was confirmed by her solicitor on 22nd November 2016.

Mr Joyce said that on 24th November 2016 he received a letter from the Complainant’s Solicitors which referred to a protected disclosure having been made by the Complainant regarding the inappropriate use of company funds and stated that any attempt at an investigation into the 18th November incident would be vigorously defended including making an application to the High Court. He said that as a result it was decided that the company would opt for mediation. Mediation did not resolve matters. He said that in the interim he received details from the WRC of claims made by the Complainant, alleging that the Complainant had been constructively dismissed. This claim was subsequently withdrawn. He said that he issued a P45 for the Complainant on 21st February 2017, as she had been suspended for gross misconduct and she was refusing to co-operate in an investigation.

The witness said that new tills were introduced in 2015 following a revenue audit, some of the cash registers that were there before the audit are still there today.

Mr Joyce denied that any conversation took place with the Complainant in April/May 2016, as alleged by her concerning cash being placed in boxes. He said there are four cash registers, three of which take cash and credit cards and one which only takes credit cards., as it was out of sight and therefore security was an issue as it was not possible to have a clear view.

In cross examination, Mr Joyce was questioned about the alleged conversation in April/May 2016 regarding cash tills. He denied that such a conversation ever took place and said that the Complainant was lying about this matter. He said that all cash was put through the cash registers. He said that there were four registers and one which only took credit cards and was not used for cash as it was not secure enough. He denied that Drivers were given cash or given commission on sales. He denied that there was ever a conversation regarding alleged “fraudulent activities”. He said that this never happened, that the Complainant was trying to blackmail the Directors.
Mr Joyce said that relations with his sister, the Complainant, were fine from his father’s death in August 2015 until 19th October 2016. After that he said that she stopped speaking to him.

He was asked about a conversation on 20th October 2015 when he allegedly told her to ‘f…k off, you c…t’. He denied that this took place and said that he would not use such words.

He said that he was responsible for payroll but that family members were permitted to come to his office and take their wages in cash and their payslips were available for them in the same drawer in his office as the cash for their wages.

He said that Tessie had advised him over the phone while he was on holidays that the Complainant was doing very little work and he observed as much when he came home. On Friday 11th November 2016, the witness said that he spoke to the Complainant to ask her why she was sitting at the top of the shop, instead of at her normal place of work, however, she would not speak to him. He asked her to go to the factory to do silver soldering work, which was her normal work at that time of year, however, she refused. On 14^thNovember 2016, having spoken to Galway Conflict Management Company, he wrote her a letter about her refusal to do the silver soldering work and gave her a warning that her refusal could lead to her dismissal. He said that he had never had to correct her before. He said that he sent the letter rather than try to speak to her as she would not speak to him. He accepted that he did not give her the right of representation. He also accepted that the company did not have any formal disciplinary procedures.
He said that from 1st to 14th November 2016 the Complainant spent her working hours from 9am to 1pm each day, sitting at the top of the shop, on her iPad, or her phone and with a radio on that she had brought to work. He said that her refusal to do silver soldering work was holding up the work of the factory.

Mr Joyce was questioned about the Complainant’s allegation that she had a conversation with him (and Ms Keating) in April/May 2016 about the use of a “cash till”. He denied that such a conversation ever took place and said it was fabricated evidence. He denied the existence of a cash till/ cash box/ cash drawer.

The witness was asked why he instructed his solicitor to suspend the Complainant. He said that she was “the leader of the pack”. She had called her husband to come and block the Tearoom entrance and she had said they were closing the place down and would come back every day with placards. He said that all she wanted to do was liquidate the company and close it down. Her husband said that they had stolen documents “that high”. He said that as a result of the Complainant’s (and others) actions on that day, CIE threatened to cancel the rest of the season and there were three weeks left in the season.

The witness was asked why the investigation mentioned in his solicitor’s letter to the Complainant did not take place. Mr Joyce replied that he viewed the reference in the Complainant’s solicitor’s letter dated 24th November 2016 as a threat. In his view, if he instigated such an investigation it would be vigorously defended, she would not participate in such an investigation and the matter would be referred to the High Court. He said that they would have engaged an external person to carry out the investigation and had a barrister in mind to do so. He said that in a second letter of the same date the Complainant’s solicitor suggested mediation. A mediation meeting was arranged for 19th January 2017.

He agreed that the letter dated 21st February 2017 sent to the Complainant notified her of the termination of her employment and enclosed her P45. He said that this was given in the context of her gross misconduct on 18^thNovember 2016, her refusal to engage in an investigation and where the Complainant had issued proceeding under the Unfair Dismissals Act to the WRC in December 2016, claiming constructive dismissal, which were subsequently withdrawn. He said that the Complainant was a loving sister and he deeply regretted that he had to give her a P45. He said that his trust and confidence in the Complainant had gone.
Mr Joyce was questioned about shareholder meetings and whether or not such meetings ever took place after their father died. He said the siblings talked in work, however, there were no formal meetings.

Summary of Ms Grace Keating’s Evidence

Ms Grace Keating gave evidence on behalf of the Respondent. She told the Court that she has been a Director of the company for over 20 years. When asked about an alleged conversation with the Complainant in April/May2016 when the Complainant said she didn’t want to work for a fraudulent company, Ms Keating said she had no recall of such a conversation.

The witness recounted events that took place on 7th October 2016 when the Complainant asked to discuss her wages with her and with Mr Ambrose Joyce. The Complainant was alleging that she had been underpaid and was receiving €450 instead of €465 per week, for a number of years. Ms Keating explained that as a family member the Complainant could pay herself in cash every Friday at lunch-time. She said Ambrose Joyce told the Complainant that he would look into it and the Complainant had replied‘I can’t wait to be bought out of this company’. The witness expressed shock at such a statement and said that the Complainant was quite accusatory towards Ambrose Joyce.

In response to a question regarding a letter seeking access to the books, the witness recounted events on the 17th October 2016 when Ms Anne Marie Lally accused her of stealing large amounts of money. Following this conversation, the witness had to be hospitalised for a serious medical condition. On her return to work on 25th October 2016, she was unable to drive so her husband Niall brought her to work. Around this time, Ambrose Joyce was away on holidays, so Niall helped out in the company with heavy lifting and other similar tasks. She became ill again and was hospitalised on 31^stOctober 2016 for 3 weeks. She telephoned her brother Ambrose and told him to return early from his holidays as there was no one to run the business.

Under cross-examination she confirmed that her title was that of Operations Manager and her main areas of responsibility were overseeing the shop, staffing and stocking. She helped out in the Tearoom, her focus was on the shop not the factory. When asked about the conversation in April /May 2016 when the Complainant said that she didn’t want to work for a fraudulent company, Mr Purdy put it to her that if she had no recall that maybe it could have happened. In response the witness said she would have remembered such an event. In response to questions relating to the cash payment system, she explained that Ambrose would download the amount and write a cheque which she then cashed and put in the drawer in the office and the family members would then pay themselves, as all family members were trusted to take what they were owed in wages. When asked if there was any money left over, the witness said that there was also petty cash in the drawer. The witness said that nobody counted the money and that the petty cash was not reconciled. She disagreed that this amounted to a sloppy way to run a business.Mr Purdy asked her how much money she put aside for the Complainant on a specific date in early November 2016, the witness replied €465. Mr Purdy put it to her that in fact it was €450 that she put in an envelope for her. The witness said she put in €465 and she didn’t know what happened to result in the Complainant saying she got €450.

The witness was asked about the AGM in August 2016 and she confirmed that the Company’s accountant, Ambrose Joyce and herself were present at the AGM which was held in the Tearoom. She said that she was the executor of the Will and as such was the sole shareholder until 2017. She said that they were happy with the accounts and that immediately after the meeting she went over to the shop and spoke with the other siblings and informed them they were happy with the accounts. She accepted that a copy of the accounts was not provided to the siblings at the time but said a copy of the accounts were left in the office. She confirmed that.

In response to questions regarding her husband Niall and his role when Ambrose was on holidays, Ms Keating said he helped out with the heavy shutters, swept the floors and did general handyman duties. Mr Purdy asked specifically why her husband was in the shop on 18th November 2016, the witness said that he had been asked by Mr Joyce to help out when he was away on holidays, to open the shutters and gates, to sweep theleaves, open doors and windows. She said that he had no function in the operation of the shop or the tills and accepted that he had no function in directing employees.

Ms Keating was questioned by the Court as to why the Complainant was not aware of the salaries of the Directors. In response the witness said the Complainant did not appear to understand the meaning of the word “renumeration”. She said that the reference in the audited accounts to ‘Directors’ Remuneration of €95,000’, was to payment divided between three Directors, her father, Mr Joyce and herself and that she was paid €780.00 gross per week and her father’s share was minimal.

When asked about the Complainant’s attendance at the AGM/EGM, the witness said the Complainant had attended one AGM in the past, but no EGM. She confirmed that she was aware that Ambrose Joyce had issued the Complainant with her P45 and she supported him in this. She also said that she was aware that no investigation took place.

When asked if there was any meeting with the family members after the death of her father to discuss how things were going to work out, the witness said there was no formal meeting, but they had conversations every month, the business was getting busy and was growing each year. She said it was a difficult Will involving business and property.

In response to questions from the Court, Ms Keating denied that bus drivers received any perks or payments for bringing customers to the shop. The witness denied that there was any wooden box for cash, or cash payments to drivers, or any practice of putting €50 away for every €1,000. She said 95% of transactions were via credit card. Ms Keating confirmed that a Revenue Audit of the business had been undertaken in 2014, she said that the Auditors went through everything over two days and issued a tax clearance cert with one proviso related to car expenses incurred by her father.

In re-examination, Mr Purdy showed her photographs which were purported to be “wooden boxes”, the witness indicted that these were drawers under the tills for till rolls, biros and other such things.

In response to a question from Ms Tennyson, the witness stated that the Revenue Audit was undertaken in 2014 not 2015.

The witness was asked about her relationship with the Complainant, she said that they were sisters but were not exactly friends.

Summary of Mr Niall Keating’s Evidence

Mr Niall Keating gave evidence on behalf of the Respondent. He told the Court that he was married to Ms Grace Keating and was a retired bank manager.

He confirmed that his employment with the Respondent came about when Mr Ambrose Joyce was going on holidays and asked him if he would work during the period of 24th October 2016 to 21st November 2016. His duties included bringing his wife and Tessie to work each morning, opening up the shop, including the heavy security shutters and gates, sweeping the leaves and making the external area safe.

The witness told the Court that the Complainant returned to work on 1st November 2016. Ms Tessie Joyce came into work at 8.15am to get the till and credit card machines ready and prepare the shop. At about 8.45am she checked the bathrooms, and the witness would answer the phones and take in the post while she was gone. He said the Complainant usually came in at 9am and they would have a chat as they had a good relationship. In response to a question regarding his wife returning to hospital, he said he met the Complainant in the hospital when he was visiting his wife. He thought it was between 2.30pm and 3.30pm when he bumped into the Complainant who was with her son. He could not recall the date but said it was the first week of November 2016.

Mr Keating also confirmed that he was present on the morning of 18th November 2016 with Mr Joyce when the Complainant came in saying it was tea time. Mr Joyce responded by saying it was a bit early for that, to which the Complainant replied, ‘you are not my boss’.

The witness recounted an exchange between himself and the Complainant in the shop on 18th November 2016. The Complainant came in and sat down and proceeded to use her iPad and phone. She asked Mr Keating what he was doing in the shop. He explained that Ambrose had asked him to help out in the shop and with the CIE tour that morning. The Complainant became agitated and replied that that was where she worked. Mr Keating told the Complainant that she had better take the matter up with Ambrose as it had nothing to do with him. The Complainant replied that’he’s not my boss and never will be’. He said that she started to clean the display and sprayed Windolene near him. The witness then told the Court that he said to her, ‘Frances are you trying to bully me’, to which she responded, ‘you are full of s…’. He then said, ‘given you were in hospital recently, you probably are not’.
Mr Keating gave his account of the events which occurred on 18^thNovember 2016. He told the Court that the Complainant said that she would ring her husband to come up and sort it out and ‘block the entrance of the Tearoom’.

The witness said he called Ambrose and told him that Mr Joe Murphy (the Complainant’s husband) was on his way to block the entrance and he had better cancel the tour bus. Just then he saw Ms Anne Marie Lally arrive and block the shop and factory. He saw Ambrose talking with Ms Lally and saw her swing for him. Ambrose had blood running down his face. The witness said that at that the Complainant went to the door and said, ‘good girl Anne Marie’. Then the Complainant’s phone rang and when she answered it, she said, ‘Joe come up and block the Tearoom’.Within a couple of minutes Mr Murphy arrived driving at speed and pulled up tight against the Tearoom. The witness said he felt concern for his own personal safety as there were lots of knives and pieces of marble around and he tried to close the doors and lock the office. He said that the Complainant got the door open and Mr Murphy came thundering in shouting and looking for the ‘coward’.Then Mr Fergus Lally arrived and burst in with Ms Lally. He said that all three were shouting,“they are robbing the place, close the place down, we don’t know what our inheritance is”. The witness said that Mr Lally knocked some displays and said, “we will have it sold and closed by Christmas”. The witness recounted further exchanges between various family members and the arrival of the Gardai, who interviewed everyone including the witness. He told the Court that he remained in the Tearoom with the door locked but on request from Ambrose he opened the door to allow the Complainant to use the bathroom, however, Mr Murphy pushed his way in shouting.

Under cross examination the witness denied that he was an angry man and agitated with the Complainant. He denied that he informed her she was not to work at her usual location. He said his only involvement with customers was to direct them to the factory. When he was standing at the entrance to the factory, he said the Complainant told him that the factory was her area, not his. He told her that she needed to discuss this with her brother.

In response to a question from the Court about who was in charge in circumstances where Mr Ambrose Joyce and Ms Keating were not there, Mr Keating replied that he did not know. Frances was there until 1pm and Tessie all day and he recognised them equally.

Summary of Ms Tessie Joyce’s Evidence

Ms Tessie Joyce gave evidence on behalf of the Respondent. She told the Court that she worked in the company practically all her life, primarily in the shop, but she also did research on marble. She said on 19th October 2016 her sister Ms Lally came into the shop shouting that they were going to have Ms Grace Keating removed as executor of the Will as the Directors were stealing money. She said sadly neither the Complainant nor Ms Lally had spoken to her since that day and their actions had had a very detrimental effect on her. She said that while the Complainant was out sick, she kept ringing her, but she never answered. She tried to speak to the Complainant when she returned to work on 1st November 2016 after sick leave, but she would not respond and was very dismissive of her, which she found very upsetting as they had been very close.

She said that in the winter time, the Complainant normally worked in the factory, however, on her return to work in November 2016, the Complainant attended the shop and was on her iPad, her phone and with a radio on, which she said was bizarre behaviour. On 2nd November 2016, the witness said that she saw the Complainant take the keys for the building called the ‘Luckpenny’, where files are stored. When she looked out the window, she saw Mr Fergus Lally drive up and then remove approximately eight boxes from the Luckpenny building while the Complainant looked on. She said that she was terrified of the Complainant at that stage and did not wish to cause a row. The witness said that Ambrose Joyce normally telephoned in the afternoons from his holiday and that she told him about the Luckpenny incident and on his instruction, she locked his office. Later that morning two customers that the Complainant had been serving were waiting at the counter and were agitated. They said they had already paid for their goods, but the lady didn’t come back to attend to them, in that regard she said that they were referring to the Complainant.

In relation to the events on 18th November 2016, the witness said she will never forget the events of that day, it was so traumatic. She said they were expecting a CIE tour at 9.30am. She said that she was in the Tearoom, Anne Marie had parked her car at the factory and was marching up and down shouting. She asked Ambrose to come up. She said she heard Ambrose ask Anne Marie what was wrong. She told the Court that she witnessed Ms Lally hit Ambrose and heard the Complainant say, ‘good girl Ann-Marie’. Mr Joe Murphy and Mr Fergus Lally were both shouting. Mr Murphy and the Complainant were shouting “we are closing this place down by Christmas” The witness said the Complainant was screaming ‘I want my 1/6^th’. The witness said that Mr Murphy and Ms Lally said nasty things to her. The Gardai interviewed all except her.

Under cross examination by Mr Purdy, she said she had completed a BA and H Dip, she had a law degree and had worked in Spain. She gave evidence that she was put on the books when she returned to work for the company in 2010 following the completion of her law degree. She said that she received €550 gross per week which she took from the bag in the office each week in cash. She was asked if she was aware of the disagreement over the Complainant’s wages, she said that she got the impression that the complainant was accusing Ambrose of stealing large bonuses from the company. The witness was asked about locking the Director’s office door. She responded that she got the impression that that was in the context of the letter from the Complainant’s solicitor threatening legal action over the accounts.It was put to her that the Complainant denied that she left customers unattended on the 2nd November 2016 as she was at a hospital appointment that day and not at work. Ms Joyce did not accept this.

In response to questions from the Court, Ms Joyce said the suggestion of a cash box was completely fabricated. When asked if customers were directed to a particular till she denied this and said customers could pay at any till. When asked about the suggestion that cash was paid to bus drivers, she said that never happened, there were never any perks for drivers.

The Law Applicable

The Act provides for a tiered disclosure regime and encourages a worker to make a disclosure to his/her employer or a prescribed person in the first instance. It provides that a worker may make a protected disclosure to his/her employer where he/she reasonably believes that information being disclosed shows or tends to show wrongdoing.

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.

“‘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

• 
  (1) A disclosure is made in the manner specified in this section if the worker makes it—
  
  • (a) to the worker’s employer, or
    (b) where the worker reasonably believes that the relevant wrongdoing which the disclosure tends to show relates solely or mainly—
    
    • (i)to the conduct of a person other than the worker’s employer, or
      (ii)to something for which a person other than the worker’s employer has legal responsibility, to that other person.
  
  (2) A worker who, in accordance with a procedure the use of which by the worker is authorised by the worker’s employer, makes a disclosure to a person other than the employer is to be treated for the purposes of this Act as making the disclosure to the employer

• “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 having made a protected disclosure.”

Discussion and Findings

The Court must first establish that a protected disclosure within the meaning of the 2014 Act has been made by the Complainant before it can consider whether penalisation for the making of a protected disclosure has occurred. In this case, it is disputed that a protected disclosure in line with section 5 of the 2014 Act was made.

The 2014 Act provides in section 5(7) that a complainant’s motivation for making a disclosure is irrelevant to whether or not it is a protected disclosure. It also provides in section 5(8) that where an issue arises as to whether a disclosure is a protected disclosure it shall be presumed, until the contrary is proved, that it is.

The test for whether a communication is a protected disclosure is whether relevant information is disclosed which the employee reasonably believes shows a relevant wrongdoing by the employer.

In this case the term ‘protected disclosure’ was first raised in November 2016, after the Complainant’s suspension from her employment, when her solicitor wrote to the Respondent stating that the real reason for her suspension was the fact that she had made a protected disclosure about the inappropriate use of funds. The fact that no mention was made of the term ‘protected disclosure’ prior to this does not mean that matters raised by the Complainant before this time are not protected. As outlined by Humphreys J. in the recent case ofClarke-v-CGI Food Services Limited & Anor. [2020] IEHC 368:

• “One can make a protected disclosure without invoking the 2014 Act or without using the language of “protected disclosure”. It is often only after the victimisation, dismissal or other adverse consequence arrives that one has to “retrospectively” figure out what really happened and analyse it in the statutory language. There is nothing wrong with that process and it is certainly different from “retrospectively” creating a case from nothing”.

• 
  “Although the concept of a protected disclosure is effectively a term of art as defined by the 2014 Act, the word ‘disclose’ has the ordinary meaning of to ‘reveal’ or ‘make known’. In this context the statement that the communication did not disclose any wrongdoing on the part of the respondent is, in fact, factually correct as the communication by the appellant, as found by the Labour Court, did not reveal or make known any wrongdoing on the part of the respondent. In those events it was not possible to read into the communication any reasonable belief of a relevant wrongdoing on the part of the employer”.

For the reasons set out above the Court is satisfied that the Complainant has failed to establish that a protected disclosure within the definition set out in Section 5 of the 2014 Act was made.

The Complainant’s appeal is dismissed. The Decision of the Adjudication officer is affirmed.

The Court so Determines.

	Signed on behalf of the Labour Court
	Caroline Jenkinson
H.M.	______________________
28/10/2020	Deputy Chairman