PDD217

FULL RECOMMENDATION

SECTION 12 (2), PROTECTED DISCLOSURES ACT, 2014

PARTIES :

PRIVATE RESIDENTIAL TENANCIES BOARD, RESIDENTIAL TENANCIES BOARD (RTB)
(REPRESENTED BY MR BARRA FAUGHNAN BL, INSTRUCTED BY EVERSHEDS SUTHERLAND)

- AND -

MR JIMMY LEAHY
(REPRESENTED BY CRUSHELL & CO. SOLICITORS)

DIVISION :

SUBJECT:

1.Appeal Of Adjudication Officer Decision No(S)ADJ-00018461 CA-00023643-002

BACKGROUND:

2.This is an appeal by Jimmy Leahy (Complainant) against decision ADJ-00018461 of an Adjudication Officer in his complaint against his previous employer The Residential Tenancies Board (the Respondent). The complaint was made pursuant to the Protected Disclosures Act 2014 (the Act). The Adjudication Officer held that complaint was not well founded. The Complainant had also appealed a decision in respect of a case under the Unfair Dismissals Act, 1977. However. following a case management hearing by the Court in respect of both his appeals on the 30^thMarch 2021, the Complainant withdrew his appeal under the Unfair Dismissals Act.

Background

The Respondent is a corporate body established by statute. The Complainant was appointed to the Board of the Respondent by the then Minister on the 10^thJune 2014 and his term of office expired on the 31^stMay 2018. The Complainant was not re-appointed to the Board. It is the Complainant’s submission that the failure to re-appoint him or consider him for re-appointment arose from the fact that he had made a protected disclosure.

The Complainant submitted he made a protected disclosure to the Minister in conjunction with three other Board members by letter of 3^rdNovember 2014. The Complainant is alleging penalisation as defined in section 12 of the Act. The Respondent accepts that the letter sent to the Minister by the Complainant and his three colleagues is capable of coming within the definition of a protected disclosure under section 5 of the Act. It is the Respondent’s submission that the Complainant did not suffer penalisation as defined in the Act. The decision not to reappoint the Complainant to the board was a matter solely for the Minister.

Preliminary issue.

Mr Faughnan BL on behalf of the Respondent raised a preliminary issue in respect of the jurisdiction of the Court to hear the case. It was his submission that the Complainant was not an employee as defined by the Act and therefore he could not rely on section 12.

Following a short break, the representative for the Complainant Mr Crushell confirmed that his instructions were that the Complainant ‘s position is that he is relying on the wider definition of worker under the Act and not the definition of employee.

Mr Faughnan BL on behalf of the Respondent submitted that section 12 of the Act only applies to employees and as a worker he was not entitled to rely on that section to seek redress.

It was Mr Faughnan’s BL submission that a worker seeking redress for penalisation under the Act had to do so under section 13 of the Act. Mr Faughnan BL submitted that this Court had no jurisdiction under section 13 because the right of action under that section is a tort and falls to be dealt with by the Civil courts.

Mr Crushell submitted that although the Complainant fell under the classification of worker and not the definition of employee, the relationship with the Respondent was one where the Respondent fell within the definition of employer within the Act.

Mr Crushell submitted on behalf of the Complainant that as the Complainant had made a protected disclosure within the definition of section 5 of the Act, and as the Respondent was an employer for the purpose of the Act, he was entitled to seek redress and rely on section 12.

Legislation

3. Interpretation
(1) In this Act—

“worker” means an individual who—

(a) is an employee,
(b) entered into or works or worked under any other contract, whether express or implied and (if it is express) whether oral or in writing, whereby the individual undertook to do or perform (whether personally or otherwise) any work or services for another party to the contract for the purposes of that party's business,
(c) works or worked for a person in circumstances in which—
(i) the individual is introduced or supplied to do the work by a third person, and
(ii) the terms on which the individual is engaged to do the work are or were in practice substantially determined not by the individual but by the person for whom the individual works or worked, by the third person or by both of them,
or
(d) is or was provided with work experience pursuant to a training course or programme or with training for employment (or with both) otherwise than—
(i) under a contract of employment, or
(ii) by an educational establishment on a course provided by the establishment,
and includes an individual who is deemed to be a worker by virtue of subsection (2)(b) and any reference to a worker being employed or to employment shall be construed accordingly.

5. Protected Disclosures
(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.

12. Other protection of employees from penalisation for having made protected disclosure

(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 the Unfair Dismissals Act 1977applies.
(3) Schedule 2 shall 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 the Unfair Dismissals Act 1977.
(5) Any person who, on examination authorised under paragraph 3(1) of Schedule 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) A person to whom a notice under paragraph 3(2) of Schedule 2 has been given and who refuses or wilfully neglects to attend in accordance with the notice or who, having so attended, refuses to give evidence or refuses or wilfully fails to produce any document to which the notice relates commits an offence and is liable on summary conviction to a class A fine.
(7) A document purporting to be signed by the chairperson or a deputy chairperson of the Labour Court stating that—
(a) a person named in the document was, by a notice under paragraph 3(2) of Schedule 2, required to attend before the Labour Court on a day and at a time and place specified in the document, to give evidence or produce a document, or both, and
(b) a sitting of the Labour Court was held on that day and at that time and place, and the person did not attend before the Labour Court pursuant to the notice or, having so attended, refused to give evidence or refused or wilfully failed to produce the document,
shall, in a prosecution of the person for an offence under subsection (6), be evidence of the matters so stated without further proof unless the contrary is shown.
(8) Summary proceedings for an offence under subsection (5) or (6) may be brought and prosecuted by the Minister for [Enterprise, Trade and Employment].
(9) Where an offence under subsection (5) or (6) is committed by a body corporate and it is proved that the offence was committed with the consent or connivance, or was attributable to any wilful neglect, of a person who was a director, manager, secretary or other officer of the body corporate, or a person purporting to act in that capacity, that person, as well as the body corporate, is guilty of an offence and may be proceeded against and punished as if he or she were guilty of the first-mentioned offence.
(10) Where the affairs of a body corporate are managed by its members, subsection (9) applies in relation to the acts and defaults of a member in connection with his or her functions of management as if he or she were a director or manager of the body corporate.

DETERMINATION:

It is not disputed between the parties that the Complainant is a worker as defined by the Act. The question for the Court is what protection is provided by the Act for workers. The Complainant is seeking the remedies contained in section 12 of the Act. However, that sections is titled “protection of employees…”It is not disputed that the Complainant in this case is not an employee of the Respondent for the purpose of this Act. It therefore follows from the plain wording of section 12 that the Complainant is not entitled to pursue a complaint against the Respondent under that section of the Act as the section specifically refers to employees.

As a worker the Complainant falls within the scope of section 13 of the Act which provides for an action in tort for any detriment suffered. Complaints made pursuant to section 13 of the Act, do not fall within the ambit of the Labour Court, and are matters for the civil courts. On that basis the Court determines that it does not have jurisdiction to decide a complaint of penalisation against the Respondent as the Complainant was not an employee.

The Decision of the Adjudication Officer is varied accordingly.

The Court so Determines.

NOTE

Enquiries concerning this Determination should be addressed to Elaine McNeela, Court Secretary.