PDD215

1.Appeal of an Adjudication Officer's Decision No(s) ADJ-00005832 CA-00008066-001

BACKGROUND:

2.The Worker appealed the Decision of the Adjudication Officer to the Labour Court on 19 December, 2018. A Labour Court hearing took place on 6th July, 2021. The following is the Court's Determination:



DETERMINATION:

This is an appeal by Dermot O’ Driscoll (Complainant) against decision ADJ-00005832 of an Adjudication Officer in his complaint against his then employer Cork Opera House DAC (the Respondent). The complaint was made pursuant to the Protected Disclosures Act 2014 (the Act). The Adjudication Officer held that complaint is not well founded.

Background

The Complainant was employed by the Respondent as a Financial Controller from the 25^thAugust 2010 to the 9^thSeptember 2016 when his employment was terminated. The Complainant claims that he was subjected to penalisation contrary to section 12 of the Act, when he was placed on suspension for having made protected disclosures. The Respondent denies that the Complainant made a protected disclosure within the meaning of Section 5 of the Act or that he was subjected to penalisation. The Complainant lodged his complaint with the WRC on the 8^thNovember 2016.

The complaint lodged identified three separate alleged protected disclosures made on the following dates, 13^thJuly 2015, 27^thOctober 2015 and 20^thApril 2016. At the commencement of the hearing the Complainant informed the Court that there was no penalisation arising from his protected disclosure of 20^thApril 2016.

In his submissions to the Court the Complainant identified a total of fourteen issues that he believes constitute protected disclosures. The Court explained to the Complainant that it could only hear issues in respect of which the Adjudication Officer had issued a determination and therefore only the three alleged protected disclosures that were before the Adjudication officer were properly before the Court at this hearing.

The Complainant did not have representation at the hearing and in response to a question from the Court the Complainant indicated that he wished to give evidence to the Court. It was agreed with the parties that the submissions would be taken as read and that the Court would proceed directly to hear the Complainants evidence. The Complainant was sworn in.

Summary of Complainant’s evidence

It is the Complainant’s case that he made a number of protected disclosures and that the Respondent then placed him on paid suspension arising from his making those protected disclosures.

It is the Complainant’s evidence that on the 13^thJuly 2015 he made a protected closure to the then CEO of the Respondent. This disclosure was in respect of concerns he had relating to the payment method in place for some staff. It was his evidence that he set out his concerns in an email dated 13^thJuly 2015. In that email he stated that he believed what was happening amounted to fraudulent accounting which the CEO was ultimately accountable for.

The CEO then asked him to set out the concerns he had and advised that she would bring them to the Finance Committee. By letter of the 16^thJuly 2015 the CEO advised him that a meeting of the Finance committee was scheduled to take place on the 17^thJuly. At the Finance meeting of the 17^thJuly 2015 all the documents he had submitted had been circulated to the committee. However, the CEO had received advice from the auditors that they did not have concerns and disputing that there was fraudulent accounting.

The Finance committee supported the position put forward by the CEO and approved the payment method despite the concerns that he had raised. It is the Complainant’s evidence that the nature of the penalisation arising from this disclosure was intimidation, in that on the 25^thMay 2016 an investigation was held and the detriment that occurred was that he was suspended with pay.

The second complaint is in respect of a protected disclosure that he made on the 27^thOctober 2015 to a Director who was also the Chairman of the Audit and Risk Committee highlighting his concerns that there was non-compliance with taxation legislation in respect of the practise that the Finance committee had approved in July of that year. The Chairman responded by email on the same day asking what the Complainant advised he should do. It is the Complainants evidence that he advised that the issue should be investigated. Two members of the Finance committee were appointed to investigate.

However, they found that there were no compliance issues and that this was the same issue that he had previously raised. It is his evidence that they accused him of insubordination and gross misconduct for seeking to revisit an issue he had previously raised.

It is his evidence that the penalisation that arose in respect of this protected disclosure was that he was accused of insubordination and gross misconduct and that the detriment that occurred was that he was suspended with pay from the 25^thMay 2016 and without pay from 30^thAugust 2016. It was the Complainant’s evidence that he was also sent correspondence on the 10^thAugust 2016 requesting that he sign a letter of undertaking and threatened with dismissal if he did not sign it. It is the Complainant‘s evidence that the letter stated that “ he must accept the outcome of the investigation.”

The Complainant submitted that the third protected disclosure was made to the CEO on the 20^thApril 2016 and was in respect of concerns he had arising from the house café selling alcohol under the Respondent’s liquor licence. It was the Complainant’s evidence that as he had indicated earlier there was no penalisation arising from this allegation.

As the Complainant is a lay litigant and to ensure that the Court fully understood the nature of his complaints, the Chair read back to the Complainant what the Court understood his three complaints to be. The Complainant confirmed that what the Chair read back was an accurate reflection of his evidence.

Ms Rachel O’ Flynn BL for the Respondent put it to the Complainant in cross examination that in respect of his alleged protected disclosure of the 13^thJuly 2015, that the then CEO had on the 26^thJune 2015 set out in an email, a policy directive in respect of that particular issue. It was put to the Complainant that he had been involved in the drafting of that policy document.

Therefore, what was contained in his email was not a disclosure of relevant wrongdoing. The Complainant accepted that a policy document had issued and that he had a role in the preparation of same but did not accept that his disclosure was not a protected disclosure. Ms O’ Flynn then drew the Complainant’s attention to a letter the CEO had written to their newly appointed Auditors on the 1^stSeptember 2019 in respect of the issues that he had raised in his email of 13^thJuly 2015 seeking clarification and that the Auditors did not share his view and were satisfied with the manner in which the issues were being addressed.

It was put to the Complainant that he had received a letter dated 10^thNovember 2015 which advised him that an investigation was to be caried out into his second allegation in respect of concerns around non-compliance with taxation legislation and providing him with a copy of the advices received from the Auditors in respect of the issues that he had raised. The Complainant accepted that had received the letter and the Auditors advices and that the Auditors did not agree with his viewpoint.

In respect of the second alleged disclosure which he sent by email of 27^thOctober 2015 a letter was issued to him attaching the letter of advice from the Auditors. It was put to the Complainant that the advices from the Auditor were reasonable advices. The Complainant accepted that they were. It was put to him that he is saying that the Respondent is not compliant.

However, the Auditors are saying they are compliant . The Complainant confirmed that he accepts that the Auditors gave reasonable advice, but he does not accept that the Respondent was compliant. It was put to the Complainant that his position was totally contradictory. It was also put to him that his amended minutes of the meeting of the 16^thNovember supports the position that it was not a protected disclosure.

Ms O Flynn opened to the Court and drew the Complainant’s attention to minutes of the meeting of 16^thNovember 2015 and in particular the Complainant’s comments on the minutes. In particular the Complainant’s attention was drawn to his amended minutes at paragraph nine where he states that“ I am not saying we are not compliant with tax law.

I said in my disclosure that I am concerned of a risk of possible non-compliance. I am not saying that the CEO did not comply with tax law and I am making no such allegation”. Ms O’ Flynn put it to the Complainant that this amendment clearly indicates that he was not disclosing any relevant wrongdoing and therefore there was no protected disclosure. It was put to the Complainant that by letter of the 3^rdDecember 2015, he was given the outcome of the investigation into his protected disclosure. The letter indicated he could appeal if he was unhappy with the outcome of the investigation, but he did not lodge an appeal. The Complainant accepted that he did not appeal.

In respect of the third alleged protected disclosure Ms O’ Flynn put it to the Complainant that in his email of 20^thApril 2016 to the CEO he clearly states that he is not raising any query or question in respect of the issue that all he is looking for is verbal advice/ direction. The Complainant accepted that was what his email stated, but he believed it was a protected disclosure albeit no penalisation had arisen from same.

The Respondent informed the Court that as they raised all the issues and opened all the documents that they wanted to open to the Court in the course of cross examination they did not feel it necessary to call their witnesses. They were satisfied that the cross examination and their submissions which the Court were taking as read covered all the issues they needed to raise.

The Court then afforded both parties the opportunity to make a closing statement incorporating any legal argument they wished to make.

Summary of the Complainant’s statement

The Complainant submitted that he had made protected disclosures and had been penalised. It was his submission that once he honestly believed there were relevant wrong doings, the Court had no role in establishing if there was an actual relevant wrongdoing . The Complainant submitted what was important was the basis on which his belief was formed.

It was the Complainant’s submission that section 5(8) of the Act provided for a disclosure to be presumed to be a protected disclosure and section 5(2) provides that the worker only has to have a reasonable belief that there is a relevant wrongdoing. It was the Complainant’s submission that he had suffered at the hands of the Respondent for making the disclosures and that he had ultimately lost his job. This had a detrimental effect on him and his family. He had unsubstantiated accusations of insubordination and gross misconduct levied against him and it is his belief that this all stemmed from the making of his protected disclosures.

Summary of the Respondent’s statement

Ms O’ Flynn submitted that while section 5(8) of the Act provided for a statutory presumption this was a rebuttable presumption. It is the Respondent’s case that no protected disclosures were made and this is supported by the Complainant’s own documentation as put to him in cross examination.

The Respondent denies that any of the alleged disclosures constitute protected disclosures within the meaning of the Act and even if the Court were to find that some or all were protected disclosures the Respondent denies that there was any penalisation. The Respondent further submitted that the Complainant had failed to establish any causal link between the alleged disclosures and any alleged penalisation.

The applicable law

Section 5. of the Act states;

(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.

S 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.

(2) Subsection (1) does not apply to the dismissal of an employee to whomsection 6(2)(ba) of theUnfair Dismissals Act 1977applies.

(3)Schedule 2shall have effect in relation to an alleged contravention of subsection (1) .

(4) Subsection (3) does not apply in relation to the penalisation of an employee if the employee is within paragraph (d) ofsection 2(1) of theUnfair Dismissals Act 1977.

(5) Any person who, on examination authorised under paragraph 3(1) ofSchedule 2, wilfully makes any material statement which the person knows to be false or does not believe to be true commits an offence and is liable on summary conviction to a class A fine or imprisonment for a term not exceeding 12 months or both.

(6) ………

The issue for the Court to determine is whether the Complainant made a protected disclosure as defined by the Act and whether he was penalised for doing so. Section 5 (1) of the Act sets out that a protected disclosure is a disclosure of relevant information made by a worker in the manner specified in the Act. Section 5(2)(a) states that for the purpose of the Act information is relevant information if the worker reasonably believes that it tends to show one or more relevant wrongdoing. Section 5(3) goes on to set out what matters are relevant wrongdoings for the purpose of the Act . Section5 (4) sets out that the relevant wrongdoing does not have to occur in the State and section 5(5) sets out what is not a relevant wrongdoing.

In the case to hand the Complainants first and second alleged protected disclosures pertain to what he believed to be an incorrect payment method for some members of the Respondent’s staff. While he framed the disclosures in a different manner on both occasions the underlying issue was the same. However, while the Complainant continued to assert that these were protected disclosures he did not dispute when it was put to him by Counsel for the Respondent that in his amendments to the minutes of the meeting of the 16^thNovember 2015, he had confirmed that he was not saying that the Respondent was not compliant with tax law nor was he saying that the CEO did not comply with tax law.

The Complainant confirmed in his evidence to the Court that he is not saying that the Respondent or the CEO of the Respondent at the relevant time were not compliant with the tax law. On that basis the Court determines that no relevant wrongdoing as defined by the Act had been identified and therefore no protected disclosure was made. In respect of his alleged third protected disclosure the Complainant in his correspondence of the 20^thApril 2016 clearly states that he is only seeking information.

Seeking information or clarification of an issue cannot meet the requirement of being a relevant wrongdoing. As the Complainant in all three of his alleged protected disclosures did not identify any relevant wrongdoing the Court finds that no protected disclosure as defined by the Act was made.

Having determined that no protected disclosures were made the Court did not need to go on to consider the issue of penalisation.

For the reasons set out above the Court is satisfied that a protected disclosure as defined by the Act was not made by the Complainant. The Complainant’s appeal cannot succeed and is dismissed. The decision of the Adjudication officer is affirmed.

The Court so determines.

	Signed on behalf of the Labour Court
	Louise O'Donnell
SOC	______________________
27 JULY 2021	Deputy Chairman