PDD222

1.Appeal of Adjudication Officer Decision No(s) ADJ-00027646, CA-00035417-018.

BACKGROUND:

2.The Worker appealed the Decision of the Adjudication Officer to the Labour Court on 16 February 2022. A Labour Court hearing took place on in a virtual setting on 9 June 2022. The following is the Court's Determination:

DETERMINATION:

Mr. Kayani, ‘the Complainant’, is a Store Manager in Aldi, ‘the Respondent’. On 24 March 2020, he lodged a complaint under the Protected Disclosures Act 2014, ‘the Act’ with the Workplace Relations Commission, ‘WRC’ in which he alleged that he had made a Protected Disclosure on 31 May 2019, as a result of which he alleges that he was penalised in the form of being made to feel that he was being questioned while in interview meetings that took place to investigate his complaint under the Respondent’s Grievance Procedure; that he was threatened by increased and unrealistic store targets; that he was the subject of questioning regarding his attendance in the Store when he was on a training course; that medical certification submitted by him regarding a sick absence was the subject of undue questioning; that he was put under undue pressure regarding a staff rota and that he was suspended from duty due to issues with his work visa despite similar issues having arisen previously without any suspension occurring.

The AO decided that the complaint was not well founded.

The Complainant appealed to this Court.

Summary of Complainant arguments

On 31 May 2019, a disclosure was made by the Complainant to the Store Operations Director, informing him about incorrect adjustments in working hours by an Area Manager.

This matter was dealt with by the Respondent under its Grievance Procedure. At a meeting under that procedure with the Operations Director, the Complainant further disclosed how the Area Manager had changed hours in another store also and had been reported to the relevant Operations Director, on an informal basis, for having done so but that no action had been taken.

It states in the outcome letter that neither of those parties can recall this. That letter also states that a preliminary investigation into the hours worked in that store had found no evidence of any amendments to working hours. It also states that there were no suspicious or unexplainable adjustments made by the Area Manager.

At that meeting, the Complainant had disclosed how procedures were not followed by the Area Manager in relation to deputy premium hours, resulting in losses to Deputy Managers. The Operations Director covered up for the Area Manager.

At the second grievance meeting, the Operations Director threw papers at the Complainant and told him to ‘Make sure you pay them correctly’. He was questioned about store targets, his own working hours accuracy and he was threatened with an increase in store targets.

Throughout these meetings, the Complainant felt that he was being questioned and investigated.

Two senior managers visited the store on 12 July 2019 to intimidate the Complainant and to target him by giving him an unrealistic, increased target.

On 16 July 2019, the Complainant received a call from a senior manager, while on a training course, querying his attendance at the store. The same manager called the Complainant a few days later, while he was off duty, to query the rota for the following week.

On 6 August 2019, the Complainant received a call querying his sickness.

On 30 October 2019, the Respondent suspended the Complainant because of an issue with his work visa.. This was to penalise him for making a disclosure protected by the Act. The Complainant’s visa had run out previously on a number of occasions and there had been no suspension.

The Employee Handbook provides that suspension is usually paid but, in this case, the Respondent used their discretion to remove the Complainant from pay.

Summary of Respondent arguments

The Complainant has not made any case that could fall within the definition of protected acts in the Act. His allegations were based on unsubstantiated opinions and he has failed to show how they could be defined as ‘relevant wrongdoing’ within the meaning of s.5(3).

As the Court noted inConnemara Marble Industries Ltd. v. Murphy PDD206,‘the information provided must be of facts which in the reasonable belief of the worker making the disclosure tends to show wrongdoing’

The Complainant has not shown any detriment suffered by him within the definition of ‘penalisation’ in s. 3(1) of the Act. The only issues referenced are operational issues and his suspension while he did not have a valid GNIB card.

The operational issues raised with him by his managers are legitimate operational matters that the Respondent is fully entitled to raise with him. A discussion regarding targets does not amount to penalisation. The suspension of the Complainant occurred because of his own failure to maintain an up to date GNIB card, which obliged the Respondent to suspend him.

The Respondent acknowledges that their system had failed previously to note the fact that the Complainant’s right to work had lapsed but that system was improved so that, when payments were due, it identified if an employee had lost the right to work. Others had been subject to suspension in the same circumstances. Furthermore, the Complainant was on sick leave at the time. His terms of employment provide for three months’ sick pay in a year and when the visa issue was resolved, he received his full three months’ sick pay in that year, so he suffered no loss.

The Complainant has not established that ‘but for’ making his grievance he would not have suffered any detriment, seeAidan and Henrietta McGrath Partnership v. Monaghan PDD 162,which references the test inO’ Neill v. Toni and Guy Blackrock Ltd (2010) E.L.R..

The applicable law

Protected Disclosures Act 2014

3(1)

“penalisation” means any act or omission that affects a worker to the worker’s detriment, and in particular includes—

• (a) suspension, lay-off or dismissal,

(b) demotion or loss of opportunity for promotion,

(c) transfer of duties, change of location of place of work, reduction in wages or change in working hours,

(d) the imposition or administering of any discipline, reprimand or other penalty (including a financial penalty),

(e) unfair treatment,

(f) coercion, intimidation or harassment,

(g) discrimination, disadvantage or unfair treatment,

(h) injury, damage or loss, and

(i) threat of reprisal;

Protected disclosures

5. (1) For the purposes of this Act “protected disclosure” means, subject to F1[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 ofsubsection (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 tosubsection (7A), the motivation for making a disclosure is irrelevant to whether or not it is a protected disclosure.

(7A) Where a worker, referred to insubsection (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.

Other protection of employees from penalisation for having made protected disclosure

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.

SCHEDULE 2

Redress for Contravention ofsection 12(1)

Section 12. 

Decision under section 41 of Workplace Relations Act 2015

1. A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a complaint of a contravention of section 12(1) shall do one or more of the following, namely—

(a) declare that the complaint was or, as the case may be, was not well founded,

(b) require the employer to take a specified course of action,

(c) require the employer to pay to the employee compensation of such amount (if any) as the adjudication officer considers just and equitable having regard to all the circumstances, but not exceeding 260 weeks’ remuneration in respect of the employee’s employment calculated in accordance with regulations under section 17 of the Unfair Dismissals Act 1977.]

Decision of Labour Court on appeal from decision referred to in paragraph 1

2. A decision of the Labour Court under section 44 of the Workplace Relations Act 2015, on appeal from a decision of an adjudication officer referred to in paragraph 1, shall affirm, vary or set aside the decision of the adjudication officer.

Workplace Relations Act 2015

41.

(6) Subject tosubsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.

(8) An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to insubsection (6)or(7)(but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.

Deliberation

The task for the Court is to establish if there was a protected act and if there was a detriment and, if both of these are established, is there is a causal link between the two?
The definition of a protected disclosure in the Act is extremely broad. S. 5 (1) defines it as the disclosure of information that in the reasonable belief of the employee shows one or more relevant wrongdoings. It is not necessary for an employee to prove that the information is correct, they are required only to have a reasonable belief that they are disclosing information that shows wrongdoing.

It is impossible to see how a disclosure by the Complainant in this case, to the effect that he believed his Area Manager to have interfered with working hour records, could be seen as anything other than the disclosure of information regarding relevant wrongdoing.

The fact that the outcome of the Grievance Procedure did not uphold that complaint is irrelevant to the determination as to whether or not it constituted a protected act in the first place. The only possible basis to determine that this was not a protected act would be to determine that the Complainant’s belief was not reasonable. In this regard, the Court notes that this was never put to the Complainant at any point in the entire processing of his grievance.

The Court is satisfied that in raising this matter, the Complainant committed an act that falls within the protections offered by the Act.

The second requirement of the Court is to determine if there was a detriment. The Court notes that the complaint was lodged with the WRC on 24 March 2020. The Act refers to the right of a Complainant to refer a case to an Adjudication Officer in accordance with s.41 of the Workplace Relations Act 2015. This section is set out above. S.41(6) sets out that complaints must be lodged within six months of the date of any alleged breach of the Act, except where, as per s.41(8), ‘reasonable cause’ can be shown for a delay up to 12 months.

A period of six months prior to the date that the complaint was lodged, 24 March 2020, does not encompass the period when the Complainant alleges that he was penalised in what the Respondent termed as operational issues, as the meetings and contacts referred to occurred in July and August 2019. Therefore, for the Court to consider these incidents, the Complainant is required to show ‘reasonable cause’ for the delay.

The Complainant told the Court that the delay was due to the fact that he was pursuing his grievance in that time, that he had to deal with his suspension, that he was dealing with many claims against his employer and that he was attending his GP. In the view of the Court, most of the justifications offered for the delay emphasise the importance that these matters had in the life of the Complainant and the amount of time he was spending in dealing with these matters. If anything, these are arguments to suggest that the Complainant could have, and should have, dealt with the lodgement of a complaint within six months of the events that he claims amount to penalisation. The Court is quite satisfied that no reasonable cause has been shown for the delay and that all matters that arose before the cognisable six-month period up to 24 March 2020 must be outside of the scope of the Court’s consideration.

The one act of alleged penalisation within the cognisable period is the suspension of the Complainant by letter of 30 October 2019. The Court’s view of this is relatively simple. The Complainant was required to meet certain visa requirements in order to work in this State.

If he did not meet the requirements, there is a legal obligation on his employer to ensure that he does not work unless or until he resolves the visa issue. It would be unthinkable for this Court to determine that an employer acting in accordance with their legal obligations could be deemed guilty of an act of penalisation in so doing. If, as seems to be the case, the Respondent failed previously in meeting their legal obligations, it is a matter for authorities other than this Court. It is necessary only to reflect on the potential consequences if the Court was to issue a determination that somebody who had made a protected disclosure could not subsequently be compelled by their employer to meet the legal requirement to maintain their right to work in the State, for it to become obvious that the Court would be exceeding its power in doing so and would be creating a dangerous precedent based on a legal illogicality.

For this reason, the Court is obliged to conclude that the Respondent’s actions cannot be deemed to amount to penalisation and the appeal must fail.

Determination

The Decision of the Adjudication Officer is upheld.

	Signed on behalf of the Labour Court
	Tom Geraghty
TH	______________________
24 June 2022	Deputy Chairman