Complainant

Respondent

Parties

Pawel  Andrzejkowicz

Lyonara Cold Stores Limited

Representatives

none 

Paul Gough Beauchamps

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Schedule 2 of the Protected Disclosures Act, 2014

CA-00034632-001

13/02/2020

The Complainant commenced work with the Respondent as a warehouse worker on 14 May 2019. His contract was terminated on 14 February 2020. He worked a 40-hour week for a gross salary of €520; net €495. The Complainant submits that he made a protected disclosure to the Respondent and that this resulted in him losing his job. The Respondent denies that the Complainant ever made such a disclosure.  

The Complainant had a workplace accident on 4th October 2019 where he sustained an injury to his foot. He subsequently consulted a solicitor and commenced personal injury proceedings. The Complainant claims that he had since been threatened by management to drop the claim of face losing his job.

The Complainant submits that on 5 of February 2020 the group operations manager presented him with a letter. This letter stated that his 12-month probationary period was up for review which would result in either a good review and a resultant permanent job or a bad review which may result in an extension of his probation, or even dismissal.  The Complainant submits that he was never told that he had a 12-month probationary period.; he believed instead that he had a permanent job when he commenced employment. The Complainant further submits that the Respondent agreed that he would get would get €13.00 an hour and that from January 2020 it would rise to €15.00 but that he never received this promised pay rise, even though 90% of the staff got the rise in pay.  

The Complainant asserts that he was called to the office on 11 of February 2020 where he was told 14 February was his last day. The Complainant submits that the Respondent hired a new employee the day before and took back a part-time employee to replace him.

The Complainant submits that the lodging of a personal injuries claim was a protected disclosure to the Respondent and that he subsequently was penalised in the form of dismissal for this disclosure.

The Complainant was involved in a workplace accident involving a fork lift truck on 4th October 2019. He was brought to hospital for treatment and was required to take time off work following the accident He was paid during his time off and his medical expenses were paid by the Respondent, including 6 physiotherapy sessions between November and December 2019. The Complainant subsequently informed the Respondent that he had also damaged a tooth during the incident and the Respondent also agreed to pay for his dental treatment. In total the Respondent paid almost €1,000 in bills and expenses.

Shortly after the incident the Respondent received a letter on 5th November 2019 from the Complainant’s solicitors informing them that they intended initiating personal injury proceedings. The Respondent submits that its business is cold storage business involving employees, vehicles and heavy loads. The Respondent contends that Inevitably there are accidents and in recent years a couple of claims have been brought against the Respondent and in both cases the employees, one of whom received a substantial settlement, are still employed by the Respondent.  

Protected Disclosure Act 2014 – Legal Argument.

The Respondent made the following legal submission:

The heading of the Act states that it is "An Act to make provision for and in connection with the protection of persons from the taking of action against them in respect of the making of certain disclosures in the public interest and for connected purposes."

Under the Act a “protected disclosure” means "a disclosure of relevant information" and 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.

A "relevant wrongdoing" for the purposes of the Act is one of the following:

(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.

Code of Practice

Further guidance on what constitutes a protected disclosure is provided by the Industrial Relations Act 1990 (Code of Practice on Protected Disclosures Act 2014) (Declaration) Order 2015. The Code states that the purpose of the Act is to provide a statutory framework within which workers can raise concerns and disclose information regarding a potential wrongdoing that has come to their attention in the course of their work in the knowledge that they can avail of significant employment and other protections if they are penalised by their employer or suffer any detriment for doing so.

At paragraph 30 the Code also provides guidance as to difference between a grievance and a protected disclosure. The Code states that "A grievance is a matter specific to the worker i.e. that worker’s employment position around his/her duties, terms and conditions of employment, working procedures or working conditions. A grievance should be processed under the organisation’s Grievance Procedure. A protected disclosure is where a worker has information about a relevant wrongdoing."

In his claim form the Complainant says that "I was penalised or threatened with penalisation by my employer for having made a protected disclosure within the meaning of the Protected Disclosure Act 2014".

In the "Complaint Specific Details" he states, "I subsequently put in a claim with my solicitor and have since being threatened and penalised by the Group Operations Manager to drop my claim or be fired". He further says that "he said he would fire me if I did not drop the claim".

In this case the Complainant has not identified that a protected disclosure was made to his employer or to any third party. He does not identify in his complaint form any "relevant information" as defined and does not identify any "relevant wrongdoing" on behalf of his employer.

The Complainant claims, very clearly, that he was threatened with dismissal after he initiated a claim with his solicitor and states that he was told that he would be dismissed if he did not "drop his claim". He infers that it is was bringing the claim that was the reason for his dismissal. The basis for the claim is not that he informed his employer (or indeed any third party, including his solicitor) of any relevant wrongdoing, as defined.  Rather he attributes his dismissal to commencing personal injury proceedings through his solicitor and that is not a disclosure.

In an early case, Aidan & Henrietta McGrath Partnership v Monaghan PDD 2/2016 the Labour Court stated 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.

On this point, the claim falls as no disclosure of a relevant wrongdoing was made by the Complainant. He suffered an accident in work and in the usual course informed his employer, an accident report form was completed, and he was provided with assistance towards the cost of his medical bills. He subsequently instructed his solicitors in relation to a personal injury claim. This is not a disclosure within the meaning of the Act.

The long title of the Act refers to protections afforded to employees making disclosures in the public interest and while that requirement is not carried through to the body of the Act, it’s clear that the intention was to afford protection making disclosures of public interest and not referable to their own employment circumstances. This is also apparent from a review of the wording of Section 5 (2)d of the Act.

The Respondent submits that as an alternative the Complainant could have pursued a claim under section 27 of the Safety, Health and Welfare at Work Act 2005.

Termination of Employment

At the time of the termination of his employment the Complainant had been working with the Respondent for approximately 9 months. The Respondent submits that It was decided to terminate his employment while he was still in his probationary period. The Respondent submits that an employee that had been previously working full time with the Respondent had taken time off to develop his own business while maintaining part time hours with the Respondent. He had decided to return on a full-time basis and, the Respondent contends, appears that is the full-time employee referred to in the Claimant's complaint form.

The Complainant contended that the issuing of personal injuries proceedings constitutes a protected disclosure under the Protected Disclosures Act 2014 (the Act). The Respondent argued thatthe Complainant   has not identified that a protected disclosure was made to his employer or to any third party. He does not identify in his complaint form any "relevant information" as defined and does not identify any "relevant wrongdoing" on behalf of his employer.

The Respondent opened the case of Aidan & Henrietta McGrath Partnership v Monaghan PDD 2/2016 where the Labour Court stated 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.”

Section 5 of the gives clarity on what is considered as a protected disclosure as follows:

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

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

(8) In proceedings involving an issue as to whether a disclosure is a protected disclosure it shall be presumed, until the contrary is proved, that it is.

The Complainant accepted that he could not show that he disclosed any relevant information that pointed to any wrongdoing of the Respondent, that fell within section 5 of the Act. Significantly, he expressed the view that he may have misconceived the complaint. It is clear to me, after hearing the submissions and evidence of both parties, that the issuing of civil proceedings against an employer does not constitute a protected disclosure. It is instead part of process that begins with the filling in of an accident report form that may, or may not, eventually lead to legal proceedings.  This is a regular occurrence in industrial settings and the subsequent commencement of such proceedings does not in itself constitute a protected disclosure under the Act. I find that the Complainant has not made out a case that he made a protected disclosure therefore I conclude the Complaint is not well founded.

Schedule 2 of the Protected Disclosures Act 2014 requires that I make a decision on this complaint. I conclude that the Complainant did not make a protected disclosure as defined in section 5 of the Act therefore I declare that the complaint was not well founded.

Whistleblowing, Protected Disclosure Act 2014.