Complainant

Respondent

Parties

Nicholas  Stancill

Laois Leisure

Representatives

  Complainant

 Peninsula

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00052863-001

17/09/2022

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00052863-002

05/10/2022

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00052863-003

05/10/2022

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00052863-004

05/10/2022

The complainant alleges that he was dismissed arising from a protected disclosure he made concerning the behaviour of his supervisor.  He also alleges discrepancies in relation to his pay,  failure by the respondent to provide required rest breaks and failure to provide him with a copy of his terms and conditions of employment.

Evidence was given under oath/affirmation by the complainant, Nicholas Stancill, and, on behalf of the respondent, by Peter Thunder (Maintenance), Aoife McEvoy (Duty Manager) , Michael Quirke (Person In Charge), Pamela Quirke (Group Operations Manager) and Seán Quirke (General Manager) of Laois Leisure.  All witnesses were subject to cross examination.  Submissions were received from both parties and considered by me. Subsequent to the hearing a copy of the Employee Handbook was sent to me by the respondent.

The complainant commenced work with the respondent as a Professional Leisure Attendant on 28 March 2022 and worked there until 28 July 2022 when he was dismissed.

This complaint is regarding an unfair dismissal on two grounds: firstly, it came after a protected disclosure, and secondly, the dismissal was not in line with company procedures. There were no verbal or written warnings regarding the complainant’s work performance except during an incident while the complainant was being detained by his supervisor. The dismissal came soon after  complainant lodged a grievance regarding the detention. The complainant had requested to move to the next stage of the grievance procedure, in line with company procedures, as the incident was of a sufficiently serious nature that a mediation meeting was unacceptable.  He was fired two days after this.

There was an appeal hearing with an external HR company. After this appeal, the dismissal was overturned as being unfair. The complainant believes that he was fired because he had submitted a grievance and refused to allow it to be swept under the carpet.

On 24/05/22  the complainant had returned from taking a day’s annual leave to find that Laois Leisure had only given him 5 hours annual leave. When he queried this he was told that they were short staffed and needed him to come in for a couple of hours on Sunday 29th. The complainant agreed to do so. A duty manager later asked him if he would work extra hours on the Sunday and the complainant explained that he would rather not as he had his full hours for the week, and this would mean amassing more time in lieu on a week when he had wanted some annual leave. The duty manager told him this was ok.

On 26/5/22 another Duty Manager approached the complainant to tell him that he was going to work a full shift on the Sunday and the complainant told him he was not, and that he had already discussed this with another Duty Manager.  The Duty Manager in question later came back, called the complainant from the room in front of other staff, and insisted that he had to work the full shift. In the course of this discussion, the complainant told the Duty Manager that he would speak to the manager and left. The Duty Manager in question then chased after the complainant and stood directly in his way and in his personal space, detaining him from leaving. He also told the complainant that he was not allowed to speak to the manager. The complainant told him he was leaving as it was the end of his shift. The Duty Manager continued to stand in the complainant’s way and try to block his path.  He eventually gave up.

The complainant then spoke with another manager who was on duty and discussed the grievance procedure.  The complainant wrote and submitted a grievance letter to the Deputy Manager, Ms Aoife McEvoy, and she responded by telling him the procedure to follow. She told the complainant she would consult with Sean Quirke, General Manager for advice.  The complainant requested to move to stage 2 speaking directly to the General Manager rather than the Duty Manager who had detained him as he did not want to be in the same room as someone who had previously detained him and used his power to try to force the complainant into working extra hours by threatening him with a “counselling letter”. The complainant also knew that meeting with this Duty Manager would not lead to any improvement in the way he would treat the complainant as he was renowned for doing similar things to other staff. Subsequently Ms Aoife McEvoy informed the complainant that  she had spoken to the General Manager earlier in the day and that the complainant needed to meet with the duty manager against whom he had submitted the grievance and have a mediation meeting with him.  The complainant did not agree to do so as he did not believe a mediation meeting was a suitable remedy when an employee has been physically detained by a person in a position of power and this power was used to threaten someone into doing unpaid overtime they had not consented to. The complainant believed the detainment was of a sufficiently serious matter to justify moving to the next step of the grievance procedure.

 On 17/6/2022 the complainant was called to a meeting with the Operations Manager, Pamela Quirke and was told that he was being dismissed. She informed him verbally that it was due to his attitude.  This conflicts with the reasons given in the dismissal letter which stated that he was a bad fit and failed to uphold his duties. The letter indicated that he could submit an appeal to the Operation Manager’s husband, Sean Quirke the General Manager. The complainant submitted an appeal.

The complainant attended work as per the dismissal letter to work his weeks’ notice. The General Manager removed him from site halfway into his shift and then escorted him from site. All the staff on duty witnessed this.

The complainant was invited to attend an appeal meeting. A staff member messaged him to let him know that management had called the duty managers and supervisors into a meeting and asked them for examples of anything the complainant had done wrong during his time working in Laois Leisure.

On 22/6/22- a member of the Board of Management, whom the complainant had contacted about the incident, informed the complainant that the appeals process was deemed to be unfair as it is husband and wife and the process is flawed. He confirmed to that a third-party HR Company would carry out the appeal hearing.

The Appeals meeting took place on 30th June with the external HR company.

On 30/6/22- the complainant was sent a payslip, which stated that the General Manager deducted money from the complainant’s final week’s pay packet, stating he used accrued time in lieu instead. Subsequently, on 6/7/22 following communication from the complainant, the General Manager apologised for the error.

On 26/7/22 the General Manager emailed the complainant to say the decision to dismiss had been overturned. He sent the points under which the complainant had made the appeal but did not send any outcomes outlined by the HR company. The complainant was told he had been reinstated with 2 days’ notice to come back to work. This was in the middle of a two- week holiday which the complainant had booked, and been approved, before he was unfairly dismissed.

The General Manager stated the HR company had told him just to reinstate the complainant to deal with the grievance. He made a number of unsubstantiated statements against the complainant’s  character in what was quite a hostile email, including stating that he needed “honesty” training. Subsequently the complainant received the detail of the appeal outcome and there was no evidence that the external HR company told Laois Leisure only to rehire him to deal with the grievance. This confirms that the General Manager had misconstrued the appeal outcome and withheld the evidence that the complainant’s appeal had been upheld. This further illustrated that the General Manager’s mind was made up about the complainant and that he had no intention of giving him any fair treatment if he were to return. There was also a written statement from a Duty Manager who wrote that she did not have any “dates” and then proceeded to write about some perceived difficulties she had with the complainant over the previous few months. None of these had been communicated to management beforehand, and it clearly represents that Laois Leisure management had chosen to dismiss the complainant first and look for evidence to back it up after he had submitted an appeal.

Laois Leisure failed to comply with the legal requirement of rest periods between shifts. In the Organisation of Working Time Act 1997 an employee shall be entitled to a rest period of not less than 11 consecutive hours in each period of 24 hours which he or she works for his employer. The complainant was scheduled for consecutive shifts without sufficient rest between. When the complainant requested that his shift be adjusted to allow for the legally mandated rest a duty manager considered it evidence of a “bad attitude”.

The complainant did not return to the respondent employment after the appeal. The act that he reported met the criteria for a criminal offence. Section 15 of the Non-Fatal Offences Against the Person Act, 1997 outlines that the actions of the Duty Manager fall under the grounds of a criminal offence as he physically detained the complainant by blocking his exit, and then followed him to again block his exit when the complainant tried to get around him. By these actions the Duty Manager committed the offence of false imprisonment as outlined in Section 15 of the above act. This is defined in the act as a person “intentionally or recklessly… (a) takes or detains, or… (c) otherwise restricts the personal liberty of, another without that other’s consent”.

The act the complainant reported also represented an endangerment to his health and safety, and a likely endangerment to the health and safety of himself and others in the future given the ongoing and escalating pattern of the Duty Manager’s behaviours. In the Supreme court review of the case Baranya -v- Rosderra Irish Meat Groups Limited, they found that personal complaints regarding workplace health and safety do not fall outside of the Protected Disclosures Act. The Supreme Court also found that a disclosure may be considered a protected disclosure if a there was a failure to comply with a legal obligation personal to the employee. The recourse being sought is compensation for the penalisation for making a protected disclosure under the 2014 Act, the failure to follow company procedures and failure to follow the Workplace Relation Commission Code of Practice: Grievance and Disciplinary Procedures.

Laois Leisure did not supply the written statement of terms of employment within 5 days as per the legal requirements. The complainant was never given a printed or electronic copy of the terms and conditions.

Laois Leisure provides leisure facilities in Portarlington and Portlaoise. Mr Nicholas Stancil was employed by the respondent as a leisure attendant.

The complainant referred a number of complaints to the Workplace Relations Commission under a number of statutes. He claims unfair dismissal under the Unfair Dismissals Act 1977, he did not receive a statement within 5 days, Terms of Employment (Information) Act 1994, he is owed pay, Payment of Wages Act 1991, he didn’t receive his daily rest breaks, Organisation of Working Time Act 1997.

The respondent denies the claims as set out.

Background

The complainant refers in his claim papers that he was unfairly dismissed for exercising his right under the Protected Disclosures Act 2014 as amended. The complainant has not referred to any protected disclosure through the explanations provided for within his claim papers submitted, or at any other time prior to making his submissions to the WRC.

The respondent dismissed the complainant on the 17th of June 2022. The complainant appealed that decision. A third party was engaged to carry out the appeal. An appeal was heard on the 30th of June 2022 and a report was issued on the 19th of July 2022.The complainant during this period was paid by the respondent. The appeal resulted in the reinstatement of the complainant. The complainant decided not to return to the employment following his appeal. As such no dismissal took place. It is noted that the complainant commenced employment with another employer on the 11th of July 2022. The wages owed to the complainant were discharged in full as confirmed by the complainant.

Legal Submission

CA- 00052863-001

The complainant in his referral refers that he was dismissed based on him making a Protected Disclosure, which is denied. The respondent refers to Part two, s.5 of the Protected Disclosures Act 2014 as amended. It states;

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—

 (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 workerin a work-related context].

(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 grossF13[mismanagement,

 (h) that a breach has occurred, is occurring or is likely to occur, or

 (i) 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 or an attempt has been, is being or is likely to be made to conceal or destroy such information.]

The complainant refers to the Protected Disclosures Act 2014 - 2022 in that, he made a protected disclosure in relation to him being “detained” by a Duty Manager (JOC) of which is denied.

In his claim papers he refers;

“I told him I was leaving as it was the end of my shift and I packed my stuff. He continued to stand in my way and try to block my path, “though I walked around him”.

 In his written submissions to the Commission the complainant states that the Duty manager committed a criminal offence. He says;

My disclosure of the incident with Duty Manager falls under a protected disclosure because the action constitutes a criminal offence as well as an endangerment of my health and safety, and his ongoing similar actions towards others left me to believe that he was also a threat to my own future safety and that of others.

The Protected Disclosures Act 2014 and Protected Disclosure (Amendment) Act 2022 outline that a disclosure falls under the remit of a protected disclosure if “an offence has been, is being or is likely to be committed” and “the health and safety of any individual has been, is being, or is likely to be endangered”. It also outlines that an employee should not be dismissed or penalised for reporting possible wrongdoing The amended act included “suspension, lay off, or dismissal” under the grounds of penalisation

The act that I reported met the criteria for a criminal offence. Section 15 of the Non-Fatal Offences Against the Person Act, 1997 outlines that the actions of the Duty Manager fall under the grounds of a criminal offence as he physically detained me by blocking my exit, and then followed me to again block my exit when I tried to get around him. By purposely blocking my exit while standing directly in my space, following me to detain me again when I got free, and then following me for a distance in what I believed to be an attempt to detain me again, Duty Manager JOC committed the offence of false imprisonment as outlined in Section 15 of the above act. This is defined in the act as a person “intentionally or recklessly…

(a) takes or detains, or…

 (c) otherwise restricts the personal liberty of another without that other’s consent”.

The act I reported also represented an endangerment to my health and safety, and a likely endangerment to the health and safety of myself and others in the future given the ongoing and escalating pattern of JOC’s behaviours.

The complainant when raising his grievance, failed or neglected to identify the grievance as a relevant wrongdoing or that he was referring to it as a protected disclosure. The respondent denies that it is a protected disclosure.

The respondent refers to the claim papers submitted on the 17th of September 2022. The complainant states that the duty manager stood in his way though he walked around him. He now contends that the duty manager committed the criminal offence of “endangerment” and “false imprisonment”. This was not raised as a relevant wrongdoing in any alleged protected disclosure to the respondent in the first instance.

He refers, that this offence complies with the relevant sections under the Non-fatal Offences Against the Person Act 1997. He says that the act that he reported meets the criteria for a criminal offence.

The complainant claims the duty manager physically detained him by blocking his exit. He goes onto say that the duty manager “purposely” blocked the complainants exit and by doing so he committed the offence of “false imprisonment” Moreover, he sets out the conditions upon which the law applies sanctions in such matters. The complainant refers that the Act requires that a defendant intends to withhold a person’s liberty or acts in such a way that “recklessly” withholds a persons’ liberty.

The complainant again under (d) reports that his grievance represented an endangerment to his health and safety.

Endangerment

The act of endangerment involves conduct “which creates a substantial risk of death or serious harm to other people….. The offence is limited to death or serious harm, with serious harm having the same meaning as for offences under section 4 of the Act.”1

The offence arises when the defendants conduct has created the risk of death or serious harm. In (DPP) v O’Reilly the defendant following an altercation with the deceased earlier that evening, was a passenger in a vehicle where they came upon the deceased walking. The defendant grabbed the steering wheel causing the car to swerve towards the deceased. He was charged with endangerment as he intended to cause death or serious harm. This is not the case in this matter.

False Imprisonment

On the claim that the respondent allegedly falsely imprisoned the complainant. In Dullaghan vHillenFawsitt J stated;

False imprisonment is the unlawful and total restraint of the personal liberty of another whether by constraining him or compelling him to go to a particular place or confining him in a prison or police station or private place or by detaining him against his will in a public place. The essential element of the offence is the unlawful detention of the person, or the unlawful restraint on his liberty. The fact that a person is not actually aware that he is being imprisoned does not amount to evidence that he is not imprisoned, it being possible for a person to be imprisoned in law, without his being conscious of the fact and appreciating the position in which he is placed, lying hands upon the person of the party imprisoned not being essential. There may be an effectual imprisonment without walls of any kind. The detainer must be such as to limit the party’s freedom of motion in all directions. In effect, imprisonment is a total restraint of the liberty of the person. The offence is committed by mere detention without violence.

The above passage makes it clear that “false imprisonment is committed only where a person is confined within fixed bounds. Where one’s way is merely blocked so that one has to return whence one came from or make a diversion, this does not constitute false imprisonment”

The respondent submits that the complainant did not refer a protected disclosure to the employer as set out in his submissions. The complainant had a personality clash with the duty manager which does not fall in the realm of a protected disclosure. Moreover, the respondent refers that in appealing the decision of the respondent to terminate the employment, the complainant failed to raise the issue of false imprisonment, endangerment, or penalisation.

The respondent submits that their duty manager did not have the required mens rea or actus reus to commit the offence. Moreover, the duty manager did not behave in such a way that would constitute him recklessly detaining the complainant. What transpired was a conversation around the hours of work the duty manager asked the complainant to work.

The complainant refers that his disclosure related to an action that constitutes a criminal offence as well as an endangerment of his health and safety. The respondent submits that at the time of the alleged incident, they were never alerted by the complainant to a crime. The complainant in his grievance never alerted the respondent that he was reporting criminal activity.

The respondent submits that the complainant was informed by the duty manager that he was being issued with a counselling letter relating to his behaviour. The complainant in return submitted a grievance relating to the duty manager.

The respondent totally rejects out of hand the allegation of false imprisonment and endangerment. The complainant was free to leave at any time, which he did.

Terms and Conditions of Employment

CA-00052863-001.

The complainant states that he did not receive a statement of his core terms and conditions of employment. The respondent denies this. 

Payment of Wages 1991

CA-00052863-003

The complainant confirms that he has received his pay and that the matter was rectified.

Hours of Work

CA – 00052863-004

The respondent refers to page two of the complainant’s submission in which he states in relation to rest periods between shifts; 

I refused to do this explaining the law. Despite them then being aware of the law (if they had not before) they continued to roster other staff members on with illegal working hours. Staff were afraid to complain in case they lost favour with management.

The complainant confirms that he refused to work hours where he would be denied a minimum of an 11-hour break. The complainant has confirmed that he never in a position during the employment where he was not in receipt of his daily rest period in accordance with the Act.

Conclusion

The respondent denies that they have dismissed the complainant on the basis that he submitted a protected disclosure to them. The grievance submitted related to a personality issue in which the complainant had with the duty manager. The protected Disclosures Acts 2014 as amended are not set out to deal with personality clashes.

CA-00052863-001 Unfair Dismissals Act, 1977

The complainant has argued that as he was dismissed for making a protected disclosure the normal 12 month service requirement of the Unfair Dismissals Act does not apply.

Section 6.(1) of the Unfair Dismissals Act states;

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.

(2) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal if it results wholly or mainly from one or more of the following:

 ba) the employee having made a protected disclosure

It is therefore necessary to consider firstly if the complainant made a protected disclosure.   Section 5 of the Protected Disclosures Act 2014 as amended states;

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—

 (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 workerin a work-related context].

(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

There is considerable debate between the parties as to whether the actions of the Duty Manager constituted unlawful detention making the actions potentially criminal in nature.  I am uncertain as to whether the criminal threshold would be considered to have been reached based on the evidence given at the hearing.  However, the Act also states that where the health or safety of any individual has been, is being or is likely to be endangered may also be to a protected disclosure.  Hogan J in the Supreme Court in  Baranya v Rosderra Meats Group Limited [2021] IESC 77 commented that while there were indications in the 2014 Act that the legislature had sought to exclude from its ambit complaints which relate to the worker’s contract of employment, these were anomalous. He commented that ‘many complaints made by employees which are entirely personal to them’ could amount to protected disclosures, including complaints by an employee that his or her own personal health or safety is endangered by workplace practices. It is therefore possible that a protected disclosure may arise where complaints, although in the nature of a personal grievance, raise workplace health or safety concerns.

Based on the evidence given at the hearing I am satisfied that the actions of the Duty Manager potentially endangered the health and safety of the complainant and are encompassed by this section of the Act and therefore the complaint made by the complainant to the respondent was in the nature of a protected disclosure.

The next question to be addressed is whether the complainant was penalised for making a protected disclosure.  The respondent has argued that the complainant was dismissed for reasons unrelated to the grievance (protected disclosure) made by him and, in any event, the decision to dismiss was reversed following an appeal.  I note that the various managers and supervisors were asked for their opinion on the complainant’s performance after he had lodged the grievance and therefore I am satisfied that the link between the two occurrences has been established.  I am also satisfied that the information given to the complainant both in its limitation and content, in relation to the outcome of his appeal meant that the complainant was justified in believing that the matter was not at an end and that the respondent had every intention of continuing to pursue him.  I therefore conclude that the complainant was penalised as a result of making a protected disclosure.

Where a complaint relates to a claim of penalisation for having made a protected disclosure, and where the detriment claimed is one of unfair dismissal, any applicable redress falls to be considered solely under the provisions of the Unfair Dismissals Acts.  In relation to redress in the form of compensation the Unfair Dismissals Act in Section 7 states;

7.—(1) Where an employee is dismissed and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following the rights commissioner, the Tribunal or the Circuit Court, as the case may be, considers appropriate having regard to all the circumstances:

(c) (i) if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17 of this Act) as is just and equitable having regard to all the circumstances, or

(ii) if the employee incurred no such financial loss, payment to the employee by the employer of such compensation (if any, but not exceeding in amount 4 weeks remuneration in respect of the employment from which he was dismissed calculated as aforesaid) as is just and equitable having regard to all the circumstances

In his evidence the complainant confirmed that he entered alternative employment on his return from holiday and therefore suffered no financial loss.  His entitlement to compensation is therefore capped at 4 weeks’ pay.  His gross pay was €420 per week and therefore his compensation under this claim is €1,680.

CA-00052863-002  Terms of Employment (Information) Act, 1994

The evidence of the parties differed on whether the required information had been given to the complainant.  I note that the respondent had an unsigned copy of the contract. Therefore, on the balance of probabilities, I believe the complainant did not receive the Terms of Employment and the complaint is well founded. The complainant did not suffer any negative effects from this breach and therefore I consider €200 to be the appropriate compensation.

CA-00052863-003 Payment of Wages Act, 1991

The evidence of both parties at the hearing confirms that the outstanding money initially withheld was paid.  I am satisfied that the original underpayment was a mistake on behalf of the respondent which he rectified soon after it was brought to his attention.  Therefore, there was no breach of the Act and the complaint is not well founded.

CA-00052863-004 The Organisation of Working Time Act, 1997

This complaint related to the provision of appropriate breaks under the Act.  In evidence the complainant confirmed that he had never worked hours in excess of those specified in the Act and therefore the com CA-00052863-001 plaint is not well founded.

CA-00052863-001  This complaint is well founded and I order the respondent to pay compensation to the complainant in the sum of €1,680.

CA-00052863-002 This complaint is well founded and I order the respondent to pay compensation to the complainant in the sum of €200

CA-00052863-003 This complaint is not well founded

CA-00052863-004 This complaint is not well founded.

Protected disclosure, penalised, unfair dismissal, terms of employment