FULL RECOMMENDATION
PD/20/6
ADJ-00025753 CA-00032649-001 | DETERMINATIONNO.PDD211 |
SECTION 12 (2), PROTECTED DISCLOSURES ACT, 2014
PARTIES :NORTHSIDE SECURITY SERVICES COMPANY LIMITED BY GUARANTEE
(REPRESENTED BY HAYES SOLICITORS)
- AND -
MR PATRICK DUNNE
(REPRESENTED BY CORMAC O'CEALLAIGH & CO)
DIVISION :
| Chairman: | Ms Jenkinson | | Employer Member: | Mr Marie | | Worker Member: | Ms Tanham |
SUBJECT:
1.Appeal of an Adjudication Officer Decision no. ADJ-00025753, CA-00032649-001
BACKGROUND:
2.The Worker appealed the Decision of the Adjudication Officer to the Labour Court on 11 May 2020. A Labour Court hearing took place on 16 December 2020. The following is the Court's Determination:
DETERMINATION:
This is an appeal brought by Mr Patrick Dunne against a decision of an Adjudication Officer Decision No ADJ-00025753, CA-00032649-001, dated 24th March 2020, in respect of a complaint of penalisation contrary to the Protected Disclosures Act 2014 (‘the Act’).
For ease of reference the parties are given the same designation as they had at first instance. Hence Mr Patrick Dunne will be referred to as “the Complainant” and Northside Security Services Company Limited will be referred to as “the Respondent”.
The Adjudication Officer found that the alleged protected disclosure made by the Complainant did not meet the test laid down by Section 5 of the Act and accordingly did not uphold his complaint.
The Complainant referred his complaint under the Act to the Workplace Relations Commission on 3rd December 2019, alleging penalisation by the Respondent for having made a protected disclosure to management on 23rd April 2019. The Respondent submitted that the Complainant had not made a “protected disclosure” within the meaning of the Act.
Background
The Complainant has been employed by the Respondent as a Security Officer since 1st January 2017. The Respondent operates the security services for the Coolock Development Council. The Council operates the North Side Civic Centre which provides office space and facilities for local businesses.
The Complainant is normally required to work at the North Side Civic Centre but may be required to work at other premises.
Position of the Parties
The Complainant alleged that he was penalised after he made a protected disclosure in relation to the operation of CCTV cameras by an employee of a company, (Company X), a company which provides facility management for the Centre. He alleged that the employee in question was using the CCTV for nefarious activities. The Complainant alleged that as a result of this disclosure to his managers, he was in fear and trepidation of the employee in question, he claimed he felt he was under threat of attack from him. He alleged that the Respondent did nothing to protect him and accordingly maintained that he was penalised for having made a protected disclosure. The Complainant did not wish to move locations as he believed his transfer would indicate that he was somehow at fault, he said that he sought several times to clear his name, but nothing was done.
The Respondent contended that the Complainant had not made a protected disclosure. It suggested that the report he made to management did not come within the terms of a “protected disclosure” under Section 5(5) of the Act. Without prejudice to its preliminary point, the Respondent submitted that it had reported the matter to Company X, had offered to move the Complainant to another building on the campus but he refused. Company X dealt with the matter internally. On the day that the employee in question was suspended, 25th June 2019, the Respondent moved the Complainant to a different building for his safety and welfare. The Complainant completed his shift in that building and returned to work in the Centre the following shift. The Complainant went out on sick leave on 30th June 2019.
“Protected Disclosure”
Ms Mary Paula Guinness, B.L., instructed by Hayes Solicitors, on behalf of the Respondent submitted that the Complainant’s alleged disclosure did not satisfied the definition of a “protected disclosure” as defined by Section 5(5) of the Act. Section 5(5)of the Act states:- - (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.
She argued that it was within his duties and obligations as a Security Officer to report suspicious activities of any person or employee attending the premises. She said that the disclosure of such information was a function of his job. She submitted that the allegations raised by the Complainant were clearly ones that he should have raised in his role. Ms Guinness said that the CCTV system is owned by and is under the control of Company X and not the Respondent. The Respondent and thereby the Complainant, has access to it for security purposes.
Mr John Curran, B.L., instructed by Cormac O’Ceallaigh & Co Solicitors, on behalf of the Complainant, asserted that the Complainant had made a protected disclosure within the meaning of the Act. He said that these matters had not been raised in the normal manner by which reports were made to management by a Security Officer. Instead, they were raised by way of special meetings with management, which were held on 1st May and 22nd May 2019. A meeting concerning the matter was also held with Company X, at which the Complainant attended Mr Curran said that the Complainant had also brought the activities of the employee in question to the attention of the Gardai and highlighted it on the “Joe Duffy”, RTE show. He said that the immoral activities of the employee in question had come to the attention of the Complainant over some ten years.With regard to the first limb of the definition of a “protected disclosure” under Section 5 (5) of the Act:- - “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…”
Mr Curran asserted that it was not within the Complainant’s normal duties as a Security Officer to have to deal with situations which involved such nefarious deeds and he should not have been exposed to such matters.On the second limb:- - “…and does not consist of or involve an act or omission on the part of the employer”
Mr Curran contended that the act or omission on the part of the employer was allowing the Complainant to go through the stress of reviewing the activities of the employee in question.In response, Ms Guinness said that what transpired here was an offence, the Complainant’s role was to monitor the CCTV, to control/monitor the premises and to report any misdeeds to his employer. As the Respondent had no control over the use of the CCTV or of the employee in question the employer could not be held accountable. She said that the matter was raised with Company X when it was brought to the Respondent’s attention by the Complainant in April 2019. Findings and Conclusions of the Court The jurisdiction of the Court under the Act as regards the matters arising in this case relates, in accordance with Schedule 2 of the Act, to the protection afforded by Section 12(1) of the Act to those who make protected disclosure. Section 12(1) of the Act provides as follows - 12. (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, for having made a protected disclosure.
The protection provided by Section 12(1) of the Act is afforded to persons who have made a protected disclosure within the meaning of the Act. It follows that the Court must first establish that a protected disclosure has been made before it can examine whether a penalisation within the meaning of the Act has occurred. In the event that a protected disclosure has not been made the claim of the Complainant must fail.The Act defines a protected disclosure at Section 5 as follows: Protected disclosures - 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) 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.
The Court was referred by both parties to Employment Regulation Order (Security Industry Joint Labour Committee) 2017, S.I. no. 231 of 2017. This statutory instrument outlines the statutory minimum remuneration and conditions of employment for the Security Industry. In its definitions, it provides for the meaning of “security service” and the “primary functions of a security officer”:-Meaning of 'security service': - A service of a security or surveillance nature, the purpose of which is to protect persons and property.
Primary functions of security operatives:- (i)The prevention or detection of theft, loss, embezzlement, misappropriation or concealment of merchandise, money, bonds, stocks, notes or other valuables.
(ii)The prevention or detection of intrusion, unauthorised entry or activity, vandalism or trespass on private property either by physical, electronic or mechanical means. (iii)The enforcement of rules, regulations and policies related to crime reduction. (iv)The protection of individuals from bodily harm.
The recent High Court decision ofJohn Clarke v CGI Food Services Limited and CGI Holding Limited [2020] IEHC 368demonstrates the broad scope of the definition of 'protected disclosures' under the Act. It provided clarity on the interpretation of Section 5(5)of the Act and highlighted the importance of the wrongdoing on the part of the employer to this exemption. Humphreys J. made it clear that this exemption only applies where the matter does not consist of or involve an act or omission on the part of the employer- “However once again, that totally omits the fact that there are two requirements (an investigative function and misconduct other than by the employer), which must both be present to exclude something from the definition of relevant wrongdoing, and which are joined by the word “and”.”
InBaranya v Rosderra Irish Meats Group Ltd [2020] IEHC 56O’Regan J outlined:
“That some information in the relevant communication, must attribute
some act or omission, on the part of the respondent, that the appellant might reasonably believe tends to show one or more of the relevant wrongdoings is clearly necessary.”
The Court is satisfied from a plain reading of Section 5(5) of the Act and drawing on the meaning of “Security Officer” in S. I. no. 231 of 2017, monitoring a CCTV system is a primary function of the Complainant, as a Security Officer, and this includes the reporting of any wrongdoing. In so finding, the Court is satisfied that the misuse of a CCTV by a non-security person for nefarious means is firmly within the remit of a Security Officer. Taking the first limb of Section 5(5) into account, the Court is satisfied that the protected disclosure is not a relevant wrongdoing, at it is the function of the worker or the worker’s employer to detect, investigate or prosecute.Moving to the second limb of the section, even if it is within the remit of the Complainant’s role to detect the misuse of the CCTV, the Court is satisfied that nefarious deeds perpetrated by a third party without the Respondent’s knowledge or within its control, could not be matters related to an alleged act or omission by the employer. The Respondent had no control over the CCTV or the employee in question. Counsel for the Complainant told the Court that the Complainant had been aware of the misuse of the CCTV system for ten years yet did not report it until April 2019. Based on the facts as found above the Court is satisfied that the wrongdoing reported by the Complainant in pursuance of his duties as a Security Officer was not a “protected act” within the meaning of the Act. Therefore, the Court finds that the complaint made by the Complainant is misconceived. Accordingly, the Court is not required to consider whether a penalisation within the meaning of the Act has occurred. Determination The Court determines that no “protected disclosure” within the meaning of the Act has been made in the within case. In these circumstances and for the reasons set out above the Court determines that the Complainant’s appeal fails, and the decision of the Adjudication Officer is affirmed. The Court so Determines.
 | Signed on behalf of the Labour Court | | | | Caroline Jenkinson | | H.M. | ______________________ | | 04 January 2021 | Deputy Chairman |
NOTE
Enquiries concerning this Determination should be addressed to Heather Murray, Court Secretary. |
