FULL RECOMMENDATION
SECTION 8A, UNFAIR DISMISSAL ACTS, 1977 TO 2015 PARTIES: CELTIC WORKING PLATFORMS LTD (REPRESENTED BY TOM MALLON B.L., INSTRUCTED BY GEORGE V MALONEY & CO. SOLICITORS) - AND - MR CIAN CARLIN DIVISION:
SUBJECT: 1.Appeal Of Adjudication Officer Decision No(S)ADJ-00030417, CA-00040670-001 This is an appeal by Mr Cian Carlin against an Adjudication Officer’s Decision ADJ-00030417 dated 18 November 2021 given under the Unfair Dismissals Acts 1977 to 2015 (“the UD Act”) in a claim that he was unfairly dismissed by his former employer, Celtic Working Platforms Ltd, having made a protected disclosure as defined under the Protected Disclosures Act 2014 (“the 2014 Act”). The Adjudication Officer held that he could not find that Mr Carlin was unfairly dismissed, as section 2(1)(c) of the UD Act sets out that provisions of the UD Act do not apply to a person who is employed by certain family members. A Notice of Appeal was received by the Labour Court on 10 December 2021 and a hearing conducted on 8 September 2022. For ease of reference the parties are referred to in this Determination using the same designation as at first instance. Hence, Mr Cian Carlin is referred to as “the Complainant” and Celtic Working Platforms is referred to as “the Respondent”. Preliminary matter The Complainant raised a preliminary matter with the Court. He submitted that the Adjudication Officer’s finding that the UD Act did not apply to him, on the basis of Section 2(1)(c) of the Act, was flawed for a number of reasons. Section 2(1) of the Act provides:- 2.— (1) Except in so far as any provision of this Act otherwise provides this Act shall not apply in relation to any of the following persons:
The Respondent did not challenge this aspect of the submission and accepted the position as outlined by the Complainant. As neither party raised any jurisdictional issues in relation to the Complainant’s locus standi relating to Section 2(1) of the Act, the Court proceeded to hear the complaint as a de novo appeal. Position of the Complaint The Complainant was employed as a general operative for the Respondent on various dates between 2019 and 2020. The company is owned by his father, Donal Carlin. The Complainant had less than 12 months service so relies on provisions within the Protected Disclosures Act 2014 as the basis of his complaint that his dismissal was not fair. He submits that he made a protected disclosure to a prescribed person on 4 October 2020, immediately following which he was suspended from his employment, dismissed, and had his identity revealed to multiple third parties. Furthermore, the Respondent attempted to cover their tracks by undertaking a disgraceful campaign to smear his good reputation by making up a falsehood that he had threatened to murder a colleague. The Complainant told the Court that prior to working for his father he worked for many years in the insurance industry as an underwriter, claims investigator, and latterly as an insurance broker. During the course of his insurance career, he gained extensive experience of analysing, identifying, and managing risk exposures, which gave him insight into health and safety concerns at the firm. On the day before the incident giving rise to the protected disclosure, the Complainant met his father to discuss a job opportunity that had arisen with an insurance broker. His father encouraged him to stay working for his firm and offered him a promotion and a pay rise. On 4 October 2020 the Complainant attended work at the Mannok Cement Factory in Ballyconnell, Co Cavan. He was working 12-hour shifts as the plant was on one of its triannual maintenance shutdowns. He observed a senior employee throw scaffolding fittings through a small hatch towards a junior employee in anger. He became concerned for the safety of the junior employee and remonstrated with the senior employee. After a heated exchange he reported the incident to the scaffolding operations manager. The operations manager was very reluctant to do anything about his report. He was subsequently sent home. On 5 October 2020, the Complainant called his father to arrange a meeting to discuss the events of the previous day. His father refused to meet with him and asserted that the Complainant was the one who was wholly responsible for the heated exchange. Later that evening he received an email from the operations manager informing him that he no longer had a job with the firm. On the 6 October 2020, he received an email informing him that he was suspended from his employment and requesting that he attend a formal meeting on 8 October 2020. He attended the meeting on the 8 October 2020 with his fiancée. His father, Donal Carlin, and the operations manager, Sean McManus, also attended. The Complainant recorded the meeting on his phone, unbeknownst to his father and Sean McManus. His father informed him that he would review the evidence and revert on 15 October with his decision about the Complainant’s future with the firm. On 12 October 2020 the Complainant contacted the Citizens Advice Centre in Cavan who advised him to initiate a grievance procedure with the firm, and to report the incident involving the senior employee to the Health & Safety Authority. He emailed his father to initiate the grievance procedure. Twelve minutes later he received a reply advising him that his position was terminated. The Complainant submits that the Respondent had a very relaxed view of health and safety concerns which resulted in a very weak attempt to investigate the incident. Oral statements were taken from witnesses but no notes or report written up. Multiple witnesses were interviewed together at the same time which could have compromised their statements. The incident was not reported to Mannok Cement Health & Safety personnel. The operations manager admitted that he had on occasion tossed scaffolding fittings in the past and did not believe it to be a health and safety risk. The Complainant told the Court that he has no criminal conviction and was not accused of injuring anybody. The idea that he was brandishing a weapon is nonsense. A podger spanner is a common tool used by scaffolders. If he posed a grave and reckless danger, why was he sent to a cabin with that spanner. Mr McManus could have sent for site security, or the Gardai, or Mr Donal Carlin. The Complainant reported a protected disclosure to a prescribed person, who failed to investigate that matter or make any report. At the WRC hearing the Respondent conceded that a protected disclosure was made. Position of Respondent Mr Mallon B.L., on behalf of the Respondent, said that notwithstanding what was said at the WRC where the Respondent was not represented, the Complainant did not make a protected disclosure within the meaning of the Act, and his dismissal was by reason of his own gross misconduct and not by reason of any disclosure made by him. The Complainant was employed as a general operative from 1 June 2020 until his dismissal on 16 October 2020. On 4 October 2020 he was working for the Respondent at a third party’s premises. The Respondent was erecting scaffolding as part of a major overhaul of a substantial manufacturing premises. Part of the work required persons to be inserted into a silo in which scaffolding was being erected. The persons inside the silo were wearing protective clothing, including breathing apparatus. The Complainant and another employee were cleaning fittings for use inside the silo and then passing these fittings to the scaffolders through a hatch. Some of thefittings cleaned by the Complainant and the other employee were rejected by the scaffolders working inside the silo. The Complainant took the view that this was inappropriate and approached the hatch to the silo to remonstrate with one of the workers inside the silo. It is accepted that words were exchanged. The Respondent submits that the Complainant accepts that he got very annoyed and that he was no longer in control of the situation so opted to leave. He reported the matter to the general manager, Sean McManus. He accepts that he was seething and that he told the general manager that he was going to hit Paddy with a spanner, which is a particular scaffolding tool with a significant pointed edge. In order to diffuse the situation, the Complainant was asked to leave the site for the day. He was then placed on paid suspension pending an enquiry. The general manager conducted an investigation and spoke with the other workers involved. He also discussed the matter with the managing director, Mr Donal Carlin, who is also the complainant’s father. The email sent to the Complainant on the 6 October was not a dismissal email. The Complainant met with the managing director and the general manager on 8 October 2020. The Complainant recorded that meeting but only advised the others present of this towards the end of the meeting. Having considered all of the matters, Mr Carlin decided that the Complainant was guilty of gross misconduct. By email of 12 October 2020, he wrote to Mr Carlin junior that: –
Mr Mallon B.L., submitted that the Court must firstly determine whether or not a protected disclosure was made by the complainant, and secondly whether his dismissal arose wholly or mainly by reason of making a protected disclosure. In light ofBaranya v Rosderra Meats Group Limited [2021] IESC 77the Court must look at all the surrounding matters and having done so the Court can only conclude that a protected disclosure was not made. The definition of a protected disclosure as set out at section 5(3) of the 2014 Act provides that there must be relevant information that in the reasonable belief of the individual tended to show a wrongdoing. The Complainant could not have had a reasonable belief of any wrongdoing. Mr Mallon B.L., submitted that the Court must take the evidence of the Complainant very cautiously, as it does not match the evidence of others on site. The Complainant’s demeanour on the day is relevant, as in his own words he was “seething”and “lost his temper”. Mr Mallon submitted that the Complainant accepts that he made a threat to get at or to injure a colleague. For whatever reason he got annoyed. Maybe it was because he was the boss’s son. Mr Mallon urged the Court to take account of the credibility of witnesses, and all material submitted, including an email sent to his father after his dismissal. It is accepted that there was a problem on the site that day. It is accepted that there was a disclosure of information in relation to health and safety, but not that there was a reasonable belief on the part of Complainant of a relevant wrongdoing. Mr Mallon submitted to the Court that the Health and Safety Authority conducted an enquiry and gave a full bill of health. In such circumstances it is not reasonable for the Complainant to say that there was a protected disclosure. In the event that the Court finds that there was a protected disclosure, the email of 12 October clearly limits the decision to dismiss the Complainant to the incident in the office where the Complainant was brandishing a 12-inch podger spanner. The reasons for the dismissal are set out in the full text of the email, which includes a reference to the gardai. Witness Testimony The Complainant represented himself at the hearing and gave evidence under oath. The Court also heard testimony from four witnesses for the Respondent - Mr Patrick Shannon, Mr Christopher Aspey, Mr Sean McManus, and Mr Donal Carlin. Evidence of the Complainant – Mr Cian Carlin The Complainant told the Court that on the day in question, which was a very busy period during the annual shutdown, he was servicing fittings. He was working on a stairwell 40 to 50 metres from the ground using a wire brush to clean the fittings and put them into a bucket. Chris Aspey was handing equipment through the hatch to three scaffolders inside the silo. The scaffolders wore breathing apparatus and white suits to protect themselves, as it was a dangerous environment with silica. Most of the equipment was used before and of very poor quality. He heard loud high-pitched, angry, screaming, which he attributed to Paddy Shannon shouting through his breathing apparatus. A fitting whizzed out and hit the stairwell, after which came a second, third and fourth. Fittings weigh between one and two kg and could take the head off someone. Before this incident Chris (Aspey) came to him looking visibly flushed and told him to be more careful with servicing the fittings as he was getting it in the ear. Paddy Shannon had asked Chris to pass on his complaints about the servicing of fittings. The Complainant said other general operatives were putting fittings together that were not checked. The Complainant said that he was taking his time to ensure the fittings were correct and he knew it wasn’t his fittings that was the source of the problem. After the fourth fitting came out, he went to the hatch. Mr Shannon was screaming at Chris Aspey. He told Paddy Shannon, “Don’t you throw those”. Paddy replied, “you can f**k off, you c**t”.The Complainant said, “I’m getting out of here”. The Complainant removed himself from the situation and went to the cabin. He told Mr McManus ‘I swear to God I want to smack him’and ‘he’s throwing scaffolding fittings towards people’s heads. Mr McManus told him “I’ve done that”, and then realised what he’d said. From that point onwards he felt that Mr McManus did not want to listen to him. Mr McManus said if he had to punish Paddy, he’d have to punish the Complainant also and that he was a thorn in his side.As he was leaving, he met his father and was told by him to go home, relax, and they’d talk about it the following day. On Monday he told his father that he was applying for a job in insurance. His father told him that he thought he was not suited to scaffolding. On Monday evening he received an email from Mr McManus telling him that he was sacked. He rang Mr McManus to ask was he was being sacked. He then rang his father, who told him that he could go. He was suspended with pay and attended a disciplinary meeting on Thursday 8 October. The meeting was quite intimidating. Mr McManus also attended and was able to listen to everything that was said and counter his evidence. His father told him to contact Citizens Advice which he subsequently did. He was advised to lodge a grievance and to make a complaint to the Health and Safety Authority. A few minutes later his employment was terminated. The Complainant said that he had attended the meeting on 8 October to discuss what happened with Paddy Shannon at the hatch, but it soon became apparent that the meeting was about his dismissal. In his view it was a kangaroo court and he thought he was being stitched up. Under cross examination, the Complainant agreed that erecting scaffolding in silos is a risky business. He accepted that Mr Shannon was not throwing fittings directly at colleague’s heads, but towards their heads, which in his view was an act of intimidation and a means of expressing anger aimed to scare them. He disputed that he said to Paddy, ‘ifyou do that again I will fucking kill you”. Paddy Shannon leaned his head out of the hatch and called him “a f**king c**t”.He told Paddy to “come out here and say that”. He accepted that people were shouting. He said that he was angry and that is the cut and thrust of scaffolding. He denied that he lost his temper and said that he had the cognitive awareness to remove himself from the situation, so that he was in control. He disputed that he was very agitated. In response to questions about the hatch, the Complainant could not say where Paddy Shannon was relative to the hatch opening. He said that the hatch was at waist level up to head height and Mr Shannon was throwing the fittings out. In response to questions about the meeting on 8 October, the Complainant acknowledged discrepancies between the transcript and his evidence before the Court. He confirmed that the transcript of the meeting was correct, but said any information given by him at the meeting was given under duress. He said that the meeting was an ad-hoc meeting, with no information given in advance and he had no representation. When asked why the transcript records him saying at the meeting that “Chris managed to calm me down”, the Complainant said Chris had told him to“cool it”. He was angry but did not lose his temper. When asked why the transcript records him saying after words were exchanged with Paddy Shannon “it’s safe to say I had lost my temper at that stage”, the Complainant replied that he did not lose his temper. When asked why the transcript records him as saying when he arrived at the cabin “obviously I was seething at that stage and made a remark to Sean which I now regret”,the Complainant refuted that ever happened.When asked why the transcript recordshim as saying, “I’m going to hit Paddy with a spanner”the Complainant disputed that he ever said that he was going to hit Paddy with a spanner. He said that did not have a spanner in his hands when he spoke with Sean McManus, as recorded in the transcript. He had brought the spanner with him to the cabin because they had‘sticky fingers’in that place. He said that it was in his pocket, and he then put it on the floor. The Complainant confirmed that he reported the matter to the Health and Safety Authority. He confirmed that the Health & Safety Authority had not reverted to him since he lodged his complaint. The Complainant confirmed that he made a complaint to Mannoks about hours worked at the site. He confirmed that he did not know the result of the enquiry into the complaint he made to Mannoks. The Complainant confirmed that he sent an email to his father on 15 October in which he referred to his father as “a malingering sociopath and narcissistic”. He said that had not spoken with the Irish Times, as he alluded to in that email, but did so subsequently. He disputed that the purpose of the mail was to intimidate his father. He said that there was a family relationship as well as a commercial relationship and he was deeply hurt by all that had happened. Evidence of Mr Patrick (Paddy) Shannon Mr Paddy Shannon said that he was scaffolder of nine years’ experience and was working with his supervisor, Dale Bannon, inside the silo. He was checking fittings to ensure they were right for the job. He began to get a little annoyed after five or six fittings were substandard and relayed his annoyance to Chris Aspey. He asked Mr Aspey to relay the message on further. He accepts that his language was not on par. The Complainant would have heard him shouting, as his voice echoed. He told the Court “You’d know me if you heard me”. He was in a precarious position and not happy about it. He told the Court he was working on a platform, which was 18 inches wide and 36 feet long, with a 5-metre drop below. Mr Shannon said that the Complainant was wrong to say that he threw fittings out at waist level at Mr Aspey’s head. The hatch was below his knee and Mr Aspey would have had to sit on the stairs to be at his eye line. Mr Aspey had been sitting at the hatch, but not after he warned him what he was about to do. He told Mr Aspey to mind his feet and he threw four or five fittings out onto the grid, which was made of steel and the sound amplified. The grid is a ledge outside the hatch to put your foot on getting in and out of the silo. It is not attached to the stairs. Mr Shannon said that in his view no one was at risk. His job was to keep people and the scaffold safe. No one was hit or hurt. Mr Shannon said there was a risk statement for that job and that he signed it. Evidence of Mr Christopher (Chris) Aspey Mr Christopher Aspey said that he was an apprentice at the time of the incident. He did not believe the incident could be described as dangerous. He was standing outside the hatch, which came up to his hip. Mr Shannon complained about the quality of the fittings, and he had passed that complaint on to the Complainant. Mr Shannon lobbed four of five fittings out of the hatch. When the Complainant heard the fittings fall he said, “Who did that?‘Who threw that?He came up the stairs roaring abuse at Paddy and said, ’’I’m going to kill you if you do that again’.Strong language was used by everyone. The Complainant was angry and lost his temper. He was angry about the fittings. Under cross-examination, Mr Aspey said that he did not feel intimidated or concerned for his own safety, but he did feel for Paddy. Mr Aspey said he did not report the issue to anyone but did tell Sean (McManus) about it when he was asked. He said that Paddy Shannon was angry and stayed by the hatch. The Complainant had come up the stairs. Strong language was used. Evidence of Mr Sean McManus Mr Sean McManus told the Court that he was the general manager. On the morning in question he was watching a football match on his laptop when the Complainant wrenched the cabin door open and came in saying, ‘I’m going to kill that bastard‘. The Complainant was really agitated and angry and had a spanner in his hand. He was shocked when he heard him say, ‘I’m going to kill that man‘, and was a bit scared himself. He told the Complainant,‘You won’t be killing anyone‘ and asked him to explain what had happened. The Complainant said there were lads up there being intimidated and bullied by Paddy Shannon. Mr McManus rang the supervisor, Dale Bannon, to ask if anything untoward was going on. He said no. He asked the Complainant to go to the canteen and he then called Paddy (Shannon). After that he spoke with Christopher (Aspey), and then Nathan and Killian together. None of them said they were being bullied and intimidated. He asked them if anything unsafe happened and they all said no. He called the Complainant back and told him to go home. The Complainant had calmed down by then. After that he rang the Complainant’s father (Donal Carlin), who said he would come straightaway. He received a text message that night from the Complainant saying he was sorry and would like to come back. They arranged to meet the following day, but a little later the Complainant texted again to say that he wouldn’t be coming in. Mr McManus emailed the Complainant the following day on the 5 October, after Mr Carlin had told him that the Complainant was planning to take up another opportunity. He thought he would not be back. He gave him advice, as he thought it was better than going through a rigmarole. Mr Carlin had not instructed him to send the mail and he did not dismiss the Complainant in the email. Mr McManus attended the meeting on 8 October, which was an investigation meeting. In normal circumstances it would have been his decision whether or not to dismiss an employee, but not in circumstances involving a family member. The Complainant was his normal assertive self at the meeting. Mr McManus said that he was not involved in the decision to dismiss the Complainant. Mr McManus rejected that he placed his relationship with Mr Donal Carlin above the safety of employees. It was obvious that something happened between Paddy and the Complainant. Evidence of Mr Donal Carlin Mr Carlin told the Court that he was the managing director of the Respondent company and that 80% of the company’s income came from one client Mannock. The annual shutdown was a big part of the business. Mr Carlin said that he had employed the Complainant, his son, in June 2020 on a temporary basis. He was happy to do so but never thought it would be a full-time job. He had employed him on a father son basis as he was in between jobs. The Complainant met him for a cup of coffee on the Saturday morning (3 October) and had told him about an offer of a job in insurance. Mr Carlin had some concerns about the Complainant continuing to work in a dirty business away from his own trade. He did not make a job offer to him at that meeting. He received a phone call from Sean McManus on the morning of the incident and was told that things had kicked off. He understood that Mr McManus had already spoken to other individuals. Mr McManus had every right to send the Complainant home when he did, to calm things down. In his view Mr McManus was upset but totally in control of the situation. He met the Complainant when driving up the avenue to the site. He knew instantly that something was wrong as the Complainant looked shocked and angry. He decided the best thing to do was to let things cool off, so he told the Complainant to go off and they’d talk tomorrow. It was not a disciplinary matter at that stage. He had to calm things down. When he met Mr McManus he could see that he was upset and did not know how to approach him about the matter. He investigated the incident in the office by speaking with Sean McManus, Dale Bannon, and the others over the next few days. They all said the same thing. They didn’t know why it happened or where the explosion of temper came from. Mr Carlin told the Courtthathe did not know about the email sent by Sean McManus on 05 October, which the Complainant alleges was a dismissal email, nor had he instructed Mr McManus to send the mail. He thought the Complainant had a job lined up in insurance. When the Complainant did not turn up to work he thought that the Complainant had decided to leave. He emailed the Complainant on 6 October 2020 to set up a meeting in a hotel. At the meeting on 8 October 2020, Mr Carlin said that the Complainant was relaxed and his usual assertive, polite self and was not under any pressure. Mr Carlin said that he was very careful about how he managed the meeting as he is not an expert in labour law, and it was his son he was dealing with. He was taken aback but did not object when the Complainant told him that he was recording the meeting. After the meeting, he started transcribing notes but didn’t finish as the Complainant had recorded the meeting. He discussed the meeting with Sean McManus, but the decision to dismiss was his alone. Once he made up his mind about his decision to dismiss, he sent an email to the Complainant. Mr Carlin said that his decision to dismiss the Complainant was based solely on the incident in the office when the Complainant threatened to kill or injure an employee and a weapon was used to threaten a member of staff. By the time the Complainant got to the office he had not calmed down. Had he been rational in the cabin, Mr McManus would not have phoned him. Mr Carlin was fearful that the Complainant would do something to himself or others. He would have made the same decision if the Complainant was not his son. Mr Carlin said that he knew the Complainant had a bad temper and that in other circumstances the gardai could have been involved, but the Complainant was his son, and he did not want him arrested. Mr Carlin said there was no validity to the claim that he dismissed the Complainant for making a protected disclosure. Mr Carlin said that in his view the Complainant took offence at Paddy Shannon saying that the Complainant was not doing his work properly. Paddy had said that half of the fittings were not fit for purpose, which is very frustrating. Bad language on site is not unusual. It is a high-risk business. A risk assessment is conducted on each job. The guys are working at height and must have each other’s back. Mr Carlin said he knew the guys, while the Complainant had not worked on a building site before. It was two thirds of the way through the annual shutdown. Things get tense and it is a pressurised business. Mr Carlin was called to a meeting at Mannok regarding a complaint made by the Complainant about off-site work. Mannock accepted his word on the matter. Mr Carlin said he was satisfied that he discharged his duties with regard to health and safety. Mr Carlin said that he received an email from the Complainant about discussions he had with theIrish Times. He is anIrish Timesreader, so can only suspect that the Complainant thought he would be horrified at the email. Mr Carlin said that he and the Complainant have been close as father and son. The Complainant could not come to terms with the fact that Mr Carlin senior had dismissed him. Relevant law The appeal before the Court concerns an employee with less than twelve month’s service with the Respondent. The Act at Section 2 in relevant part provides as follows: 2. (1) Except in so far as any provision of this Act otherwise provides this Act shall not apply in relation to any of the following persons:
6. (1) Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.
Section 6(2)(D) of the Act as inserted by the Protected Disclosures Act, 2014 makes provision as follows:
The Protected Disclosures Act 2014 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—
(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. Deliberation and Findings The first matter for the Court to determine is whether the Complainant made a protected disclosure as defined by the Act. The 2014 Act provides at section 5(7) that a complainant’s motivation for making a disclosure is irrelevant as to whether or not it is a protected disclosure. It also provides at section 5(8) that where an issue arises as to whether a disclosure is a protected disclosure it shall be presumed, until the contrary is proved, that it is. What was the alleged wrongdoing? It is the Complainant’s case that he made a protected disclosure when he informed his general manager that scaffolding fittings were being thrown about in a manner that endangered fellow workers. The Complainant submits that this constitutes a protected disclosure as per section 5(3)(d) of the 2014 Act which identifies a relevant wrongdoing where“the health or safety of any individual has been, is being or is likely to be endangered”. InBaranya v RosderraHogan J. also found that a complaint made by an employee that his or her own personal health or safety is endangered by workplace practices is clearly within the remit of the Act. The disclosure made to Sean McManus was that Paddy Shannon was‘throwing scaffolding fittings towards people’s heads”. On the face of it, the Court’s finds that throwing fittings about in a dangerous manner appears to be a potentially dangerous activity that could indeed endanger the health and safety of another individual. The issue for the Court to consider is whether the communication made on 4 October 2020 constituted a protected disclosure under the 2014 Act. The test for whether a communication is a protected disclosure is whetherrelevant informationis disclosed that the workerreasonably believestends to show arelevant wrongdoingby the employer. It is not in dispute that the information communicated in this instance by the Complainant to the Respondent amounted to a disclosure of wrongdoing in the workplace. The question for the Court is whether or not the Complainant could have had or had a reasonable belief that the information disclosed was true or may have been true. A disclosure of alleged wrongdoing may be reasonable even though it is ultimately found to be unsubstantiated. InBabula v Waltham Forest College [2007] ICR 1026the UK Court of Appeal determined that the fact that an employee may be wrong in their belief is not relevant, provided their belief is reasonable and the disclosure to their employer made in good faith.
In applying these tests, the Court must assess if objectively, based on the facts, the Complainant believed that Mr Shannon posed a threat to the health and safety of others. What happened at the silo and was there a danger to the health and safety of others? The Court heard evidence that erecting scaffolding in silos is a risky business, with operatives working 40 to 50 metres above the ground. The incident on the day in question occurred two-thirds of the way through an annual shutdown, which is a busy and pressurised period. Mr Shannon said that materials handed through the hatch were sub-standard which slowed the flow of work and put him in a precarious position which he was not happy about. He clearly vocalised that annoyance to the operatives working outside the hatch and asked that his complaint about the quality of the fittings be passed on. The Complainant’s evidence was that he was taking his time to ensure the fittings that he prepared were correct. He said that he knew that his fittings were not the cause of the problem. What is disputed is whether Paddy Shannon’s actions on the day posed a health and safety risk to others. The Court was faced with a conflict of evidence in relation to that matter, which requires the Court to examine the broader context in which the allegation of wrongdoing was made. The Court heard evidence from the complainant, Paddy Shannon, and Chris Aspey, all who worked at the silo that day. The Complainant says that Paddy Shannon threw fittings, weighing between one and two kg, which whizzed through the hatch towards Mr Aspey’s head in a manner that endangered his safety at work. While he accepted that Mr Shannon did not throw fittings directly at the head of a colleague, he asserts these actions were an act of intimidation and bullying, which constituted a health and safety threat to others. He says that Paddy Shannon was trying to bully younger staff and when he reported the matter to the general manager, Mr Sean McManus, the matter was not taken seriously, and a proper investigation was not conducted. Paddy Shannon strongly refuted that allegation. He said his job was to keep people safe. His evidence was that he ‘lobbed’ fittings onto a ledge outside the hatch. The ledge is used as a step to get in and out of the silo and is not attached to the stairs. Mr Shannon warned Mr Aspey before he lobbed the fittings so that Mr Aspey was out of the way of the fittings. Mr Aspey had been sitting at the hatch, but not after he warned him what he was about to do. Mr Shannon’s evidence was that he threw four or five fittings out onto the ledge. He accepted that he got annoyed, and that his language was not “on par”, and that his voice echoed, but said there was no aggression. Mr Chris Aspey’s evidence was that the Complainant lost his temper because he was angry that Mr Shannon had complained about the quality of the fittings. He rejected the assertion that Mr Shannon endangered the safety of himself or others. He said that he himself did not feel intimidated or concerned for his safety, but was concerned for Mr Shannon’s safety, when the Complainant came up the stairs roaring ’’I’m going to kill you if you do that again’. Both Mr McManus and Mr Carlin told the Court that they separately investigated the matter by speaking with the other individuals working at the silo that day. They all said nothing unsafe had happened and no-one was bullied or intimidated. Mr Carlin said that no one could explain where the complainant’s explosion of temper came from, and he had no reason to believe that Mr Shannon put others at risk. It is clear to the Court there was a problem on the work site that day that led to a heated exchange of words between the Complainant and Mr Paddy Shannon, with tempers raised and intemperate language used. It is accepted that people were shouting. The Complainant in his own evidence described this as the “cut and thrust of scaffolding”. For his part, he accepts that he himself was angry and annoyed, but says that he remained in control and removed himself from the situation. In weighing up the conflicting evidence before it, the Court attaches significant weight to Mr Aspey’s evidence about the incident, which corroborated the evidence of Mr. Shannon. Mr Aspey told the Court that he himself did not feel in any danger. His evidence is that strong language was used by everyone on the day. He said that theComplainant was angry and lost his temper. Based on the evidence presented, the Court is satisfied that Mr Shannon lobbed a number of fittings onto the ledge outside the hatch and in advance of doing so warned Mr Aspey, who was the only worker in danger of being hit by the fittings, so that Mr Aspey could stay clear of any danger. The Court does not accept that Mr Shannon threw fittings either at or towards the heads of others to intimidate. Under cross-examination the Complainant retracted his earlier evidence that fittings were thrown at the heads of others. It is also clear that the only worker potentially in the path of the fittings lobbed by Mr Shannon was Mr Aspey and so no other workers could have been impacted. Was there a reasonable belief of wrongdoing? The Court’s view on what actually may have happened on the day of the incident does not invalidate a belief on the part of the Complainant that a genuine risk to others may have existed at the time. InBarrett v the Commissioner for An Garda Siochana and the Minister for Justice and Equality [2022] IEHC 86Justice Stack noted:-
The Complainant came across as an articulate and assured individual. However, in weighing up the complainant’s evidence the Court was struck by inconsistencies and anomalies in his testimony that call into question his credibility about whether he could have had had a reasonable or objective basis for believing that a relevant wrongdoing occurred. The Transcript The Complainant fully accepts that his evidence to the Court contradicts key aspects recorded in the transcript of the meeting on 8 October 2020, which he himself transcribed after covertly recording the meeting. In his evidence he denied that he “lost his temper”at the silo, that he “was seething”when he reached the cabin, or that he made a remark to Sean about hitting Paddy with a spanner which he later regretted. Yet, he confirmed the transcript which records him making these statements was an accurate recording of the meeting. He asserts these statements were given under duress. Both Mr McManus and Mr Carlin strongly denied that the Complainant was under pressure at the meeting. Mr Carlin said that the Complainant was relaxed and his usual assertive and polite self. The full transcript which was opened to the Court records the Complainant saying that he was 100% happy with the information that he provided at the meeting. The Court accepts that the Complainant may have felt some anxiety at the meeting. This does not provide a reasonable explanation for the extent of the contradictions between his evidence to the Court at the hearing versus the transcript. In the Court’s view the Complainant’s credibility and reliability as a witness is significantly undermined by the inconsistencies in his sworn evidence to the Court at the hearing and discrepancies between his transcript and evidence. This raises serious questions for the Court about whether there was an objective basis for believing that a relevant wrongdoing occurred. The demeanour of the Complainant The demeanour of the Complainant on the day is also relevant in assessing the wider context in which the disclosure was made.The Complainant accepts that he was annoyed with Paddy Shannon on the day but says he did not lose control. In his evidence to the Court he said that he told Mr McManus ‘I swear to God I want to smack him’.He said that he was angry but not very agitated. He refutes that he lost his temper and said he had the cognitive awareness to remove himself from the situation in the silo. By contrast, Mr McManus described the Complainant’s as agitated and very angry on arrival at the cabin. He said that he was shocked and “a bit scared”when he heard the Complainant say,“I’m going to kill Paddy”. Mr Donal Carlin said that when he saw the Complainant on the avenue, he looked shocked and angry. He said that he knew the Complainant had a bad temper and decided the best thing to do was to let things cool off. On balance the Court preferred the evidence of Mr Carlin and Mr Manus on this matter. In particular the Court considers Mr McManus’ evidence that he himself was scared to be significant indicator of the Complainant’s demeanour that day. All of this suggests to the Court that the Complainant was in a heightened and agitated state of annoyance following the incident that took place in the silo. He had not calmed down by the time he reached the cabin. His demeanour on the day also raises questions for the Court about whether there was an objective basis for believing that a relevant wrongdoing occurred. If the purpose of the Complainant’s communication was to convey genuine concerns about health and safety matters to Mr McManus, this is at odds with his agitated state on the day and the threats he articulated about Mr Shannon. The Location of the hatch Much emphasis was placed by the Complainant on the height and location of the hatch in the silo. He asserts that Mr Shannon threw fittings which whizzed through the hatch at waist height towards the heads of others. Both Mr Shannon and Mr Aspey said that the hatch was below their knee and waist level respectively. Mr Shannon gave credible evidence describing that he was working on a platform, which was 18 inches wide and 36 feet long, with a 5-metre drop below. He said that he was some 2 meters away from Mr Aspey and in order for Mr Aspey to be at his eye line, Mr Aspey would have to be sitting on the stairs. His evidence was that he warned Mr Aspey before lobbing fittings towards his feet. In the view of the Court, the evidence of Mr Aspey and Mr Shannon regarding the height and location of the hatch relative to where they were located was credible and plausible. This Court does not accept the Complainant’s testimony on this matter, which in turn casts doubt on whether he could have had a reasonable belief that tended to show a relevant wrongdoing when Paddy Shannon lobbed or threw the fittings from the silo onto the ledge outside the hatch. External Complaints A final factor militating against the existence of a reasonable belief on the part of the Complainant that the health and safety of others was endangered is the nature of the external complaints made by the Complainant to third parties. The Complainant lodged a complaint with the Health & Safety Authority about the incident in the silo, which supports his assertion that he had a reasonable belief of a wrongdoing. Mr Mallon submitted to the Court that the Health and Safety Authority conducted an enquiry into the matter and found no health and safety issue. At the same time as this event the Complainant raised concerns with the third-party client about other matters relating to certain work practices on site. Mr Carlin’s evidence was that he was called to a meeting with the third-party client about the matters raised by the Complainant and his word on that matter was accepted. The Court was provided with the copy of any email the Complainant sent to his father advising that he had engaged with theIrish Timesnewspaper about writing a negative story about a businessman who had smeared the reputation of his son. In evidence the Complainant admitted that he had not engaged with theIrish Timesnewspaper when he wrote the email, although he did so subsequently. In weighing up the evidence before it, the Court finds that the scenario described by the Complainant about what happened on the day of the incident that gave rise to the disclosure of an alleged wrongdoing does not stand up to scrutiny. In particular, the Court was struck by inconsistencies and anomalies in the Complainant’s testimony. The Complainant’s explanation for the stark differences between what he said in his evidence to the Court and the transcript, which recorded what he said at the meeting on 8 October, was not credible. In the view of the Court, all of the above matters call into question the credibility of the Complainant and as a result the Court concludes that the Complainant did not have a reasonable or objective basis for believing that a relevant wrongdoing occurred. On balance, the Court is of the view that the greater likelihood of what happened on the day is that the Complainant lost his temper over the incident in the silo. Sound amplified as the fittings hit the steel grid. Mr Paddy Shannon’s voiced his displeasure in robust language that echoed around the silo. The Complainant was certain that his fittings were not the cause of the problem, yet he was on the receiving end of complaints. This led to an altercation with Mr Paddy Shannon and an exchange of words, with tempers raised and intemperate language used. Under the Act, there is a presumption that a disclosure is protected until proven otherwise. However, there is an obligation on the Complainant to establish the existence of a protected disclosure. The test for whether a communication is a protected disclosure is whether relevant information is disclosed that the workerreasonably believestends to show a relevant wrongdoing by the employer. The Court must satisfy itself that the belief of the Complainant that the health or safety of any individual was likely to be endangered by Paddy Shannon was a reasonable one. Objectively on the facts in this case, the Court is of the view that the Complainant has not satisfied that test and that he did not have areasonable beliefthat a relevant wrongdoing had occurred. For the reasons set out above, the Court finds that the Complainant has failed to establish that he disclosed a relevant wrongdoing in October 2020, and accordingly has failed to establish that he made a protected disclosure within the definition set out in Section 5 of the 2014 Act at that time. On that basis the Court determines that no relevant wrongdoing as defined by the Act has been identified and no protected disclosure was made. In such circumstances the Complainant’s cannot avail of the protections provided at sections 2 and s6(2) (ba) of the Act and, accordingly, the Court has no jurisdiction to hear his compliant under the Unfair Dismissals Act. The Court determines that the complainant’s complaint is not well founded. The decision of the Adjudication officer is varied accordingly. The Court so determines.
NOTE Enquiries concerning this Determination should be addressed to Ceola Cronin, Court Secretary. |
