FULL RECOMMENDATION
PARTIES : NATIONAL YOUTH FEDERATION COMPANY LIMITED GUARANTEE/YOUTH WORK IRELAND DIVISION :
SUBJECT: 1.Appeal of Adjudication Officer Decision No(S) ADJ-0002673, CA-00032950-001. The Complainant appealed this Decision to this Court. Background Mr. McCormack, ‘the Complainant’, was employed by the National Youth Federation, ‘the Respondent’, from March 2019 to August 2019, when he was dismissed. The Complainant lodged a complaint with the Workplace Relations Commission, ‘WRC’, of penalisation under the Criminal Justice Act 2011. The Respondent argued at the WRC hearing that the Complainant was dismissed before the end of his probationary period due to his unsuitability. The AO decided that the Complainant had not disclosed information to An Garda Siochana prior to his dismissal and that, therefore, the dismissal was not penalisation, as provided for in the 2011 Act. The AO noted also that matters raised by the Complainant had been investigated and, apart from one possible breach of Revenue rules, had not been substantiated. The Complainant appealed this Decision to this Court. Preliminary matters. In his appeal form submitted to the Court, the Complainant refers to the Protected Disclosures Act 2014, ‘the 2014 Act’ as the Act under which he seeks to appeal. The Respondent argues that this amounts to an amendment of the original complaint and, as such, is a matter that is beyond the appellate jurisdiction of the Court, as the original complaint was made under the 2011 Act, that this was the complaint on which the AO made a Decision and that this complaint alone may be appealed to the Court. The Court established that this was not an oversight by the Complainant. Rather, the Complainant asserts that an amendment to s. 20 of the 2011 Act by the insertion of a new sub section, s.20(1A), means that the original complaint made under the 2011 Act may be considered by the Court under the Protected Disclosures Act. The Complainant argues also that the fact that he did not make a report to Gardai prior to his dismissal is irrelevant as he had given notice of his intention to do so and, thereby, met the intention of s. 20(1) (b) of the 2011 Act. The Respondent argues that the meaning of s.20(1A) of the Criminal Justice Act 2011 Act is that disclosures within the meaning of the Protected Disclosures Act 2014 are protected by this latter Act and, therefore, any complaints of penalisation related to such disclosures should be made under this Act rather than under the 2011 Act. With regard to the provisions of s.20(1) (b) of the 2011 Act, the Respondent refers the Court to the original complaint form completed by the Complainant and referred to the WRC, which states his complaint, as follows; ‘I have been penalised for reporting breaches of the Criminal Justice Act 2011’. The Respondent notes that no such reports were made prior to the dismissal of the Complainant. Additional arguments on the preliminary points Complainant arguments S. 20(1A) of the 2011 Act means that the terms of s. 20(1) are now comprehended by the Protected Disclosures Act 2014. The Complainant made a protected disclosure, within the meaning of the 2014 Act and is entitled to have his appeal heard under that Act, which is now the single piece of protective disclosures legislation, replacing previous sectoral provisions. Disclosures now generally come under the protection of the Protective Disclosures Act 2014 but where a disclosure falls outside this Act, it remains protected by other, previous, legislation. The AO erred in not recognising this amendment in her Decision and in applying the requirement that a matter be reported to An Garda Siochana prior to dismissal before penalisation could be judged to have taken place, rather than applying the terms of the Protected Disclosures Act 2014. A disclosure was made in accordance with Part 1. S. 3 (1) of the Protective Disclosures Act 2014 by an employee with reasonable belief that there were relevant wrongdoings, as per the terms of the Act. The AO erred also in failing to take account of s. 20 (1) (b) of the 2011 Act, which provides protection against penalisation of an employee who gives notice of an intention to make a disclosure, as occurred in this case, so that even if the Court is of the view that the 2014 Act is not applicable, the appeal should be upheld under the 2011 Act. Respondent arguments The original complaint referred to the WRC states that the Complainant was ‘penalised for reporting breaches of the Criminal Justice Act 2011’. Adjudication was sought under Schedule 2 of that Act. The Complainant did not seek adjudication under the Protected Disclosure Act but submitted at the adjudication hearing that he was dismissed for having made a protected disclosure. It is common case that no disclosure was made to An Garda Siochana within the meaning of s.20(6) of the Criminal Justice Act, prior to the Complainant’s dismissal and,inter alia,this formed the basis of the AO’s conclusion that the complaint under that Act was not well founded. In his appeal form submitted to the Court, the Complainant did not tick the box entitled ‘Criminal Justice Act 2011’. Under ‘Reasons for Appeal’, the Complainant indicated that he was basing his appeal under the Protective Disclosures Act. The Complainant seeks to move away from his initial complaint to one in which he now alleges that he was penalised for giving notice of intention to report wrongdoing, as per the terms of s. 20 (1) (b) of the 2011 Act. He seeks to enter a further new complaint under the Protective Disclosures Act. It appears that this complaint is that he was suspended for what he claims was his unwillingness to be ‘inactive’ in respect of matters that were in the public interest. Apart from the strong denial by the Respondent that there is any basis for allegations made by the Complainant, the Court must have regard to the appeals process set out in the Workplace Relations Act 2015 and Rule 35 of the Court’s rules, pursuant to that Act, which states; ‘An appeal of an Adjudication Officer’s Decision shall be by way of de novo hearing of the complaint(s) to which the appeal relates.’ The attempt to raise two new complaints is a contravention of this rule. For the Court to adjudicate upon these new complaints would be to deprive the constitutional right of the Respondent to appeal from the WRC and would contradict the judgement in the case ofMovie News Ltd. v. Galway County Council 919770 7 JIC 1503 4. The Labour Court itself inDawn Country Meats Ltd v Hill (WTC/10/ 250). Determination No. DWT 12141, in acknowledging the rights of parties to adduce relevant evidence, emphasised that this was ‘so long as the nature of the claim remains the same as that dealt with at first instance’ and went on to observe that if the Court was to entertain a new claim, ‘the Court would be purporting to exercise an original jurisdiction that it does not have’. The applicable law Criminal Justice Act 2011 Protection for employees from penalisation for disclosing information relating to relevant offences. 20.— (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. (1A)Subsection (1)does not apply to the making of a disclosure that is a protected disclosure within the meaning of the Protected Disclosures Act 2014. (6) “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; Workplace Relations Act 2015 44. Appeal to Labour Court from decision of adjudication officer (2) An appeal under this section shall be initiated by the party concerned giving a notice in writing to the Labour Court containing such particulars as are determined by the Labour Court in accordance with rules under subsection (5) of section 20 of the Act of 1946 and stating that the party concerned is appealing the decision to which it relates. Deliberation and Determination The terms of the Workplace Relations Act 2015 make clear that the Labour Court’s jurisdiction in respect of employment law is limited to appellate functions in respect of matters on which the WRC has decided in the first instance. As the Court noted in the case of ‘Dawn Country Meats’, quoted by the Respondent’s representative above, the Court is not free to hear complaints that have not been subject to decision by an Adjudication Officer. The only complaint made to the WRC by the Complainant was under the Criminal Justice Act 2011. That is the only complaint that can be heard on appeal by the Court. Ordinarily, that would be all that the Court would observe in a case such as this when questions of jurisdiction are raised. However, the Court is required to consider s. 20 (1A) of the Criminal Justice Act 2011, which, the Complainant argues, entitles him to seek a Determination from the Court under the Protected Disclosures Act 2014. In this regard, the Court is clear that the purpose of s. 20 (1A) is not that argued by the Complainant i.e. that , he has, as it were, an each way bet so that a case argued under one Act can be substituted for a case pleaded under another Act, on appeal. On the contrary, the purpose of this section is to amend the 2011 Act to provide that the expanded protections in the Protected Disclosures Act 2014 are available to employees who report what they believe to be wrongdoings in their employment, rather than having to rely on the provisions of the Criminal Justice Act 2011. The Court can only consider theclaim under the Criminal Justice Act 2011, as dealt with at first instance. In the ‘Dawn Meats’ case, the Court noted that additional arguments may be advanced in the ‘de novo’ appeal to the Court of an AO Decision but only if those arguments relate to the nature of the claim in the first instance. In that case the Court said as follows: In a de novo appeal a party is entitled to adduce any evidence they wish provided it is relevant and probative and so long as the nature of the claim remains the same as that dealt with at first instance. What is in issue in this case is not a question of adducing new evidence on some fact that was in issue at first instance. Rather, it is a case of the Claimant seeking to pursue an entirely new claim. If that claim were to be entertained by the Court it would be purporting to exercise an original jurisdiction that it does not have. While arguments may be expanded or introduced at various points, the basic complaint that has given rise to proceedings cannot be altered on appeal. If the Court was to permit this, it would be purporting to exercise an original jurisdiction that it does not have. In summary, therefore, the Court does not have jurisdiction to hear a case under the Protected Disclosures Act, as sought by the Complainant. The Complainant’s appeal fails.
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