UDD2419

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00016805 (CA-00021731-001).

BACKGROUND:

The Worker appealed the Decision of the Adjudication Officer to the Labour Court on 16 July 2020 in accordance with Section 8A of the Unfair Dismissals Act 1977 to 2015. Labour Court hearings took place on 22 October 2022, 7 February 2023, 7 November 2023, 8 November 2023, 21 May 2024 and 22 May 2024.

The following is the Decision of the Court:

DECISION:

This is an appeal by Marian Nowak against an Adjudication Officer’s Decision ADJ-00016805 CA-00021731-001, dated 10 June 2020 given under the Unfair Dismissals Acts 1977 to 2015 (“the UD Act”) in a claim that he was unfairly dismissed by his former employer Moorehall Disability Services, having made a protected disclosure as defined under the Protected Disclosures Act 2014 (“the Act”).

The Adjudication Officer held that his complaint was not well founded.

For ease, the parties are referred to in this Determination as they were at first instance. Hence, Marian Nowak is referred to as “the Complainant” and Moorehall Disability Services as “the Respondent”.

Background

The Respondent provides care for adults with disabilities. Its service is made up of houses in the community where adults with disabilities live as independently as possible, with supports from staff.

The Complainant commenced employment with the Respondent as a care assistant on 16 February 2018 and was assigned to a 4-bedroom house working with adult males with intellectual disabilities. His employment was terminated four months later on 20 June 2018.

The Complainant contends that he was subject to penalisation during and after his employment (the subject of Determination PDD242) and his employment was terminated for raising health and safety irregularities.

The Respondent contends that no protected disclosures were made by the Complainant during his employment.

Summary of Complainant’s Case:

The Complainant made a dozen protected disclosures to the Respondent as multiple policies were breached posing a risk to the health and safety of residents. The Respondent tried to cover up their neglect and accused the Complainant of negligence. The Complainant was unfairly dismissed after four months in the employment because he made protected disclosures.

Summary of Respondent’s Case:

The Complainant did not make any protected disclosures during his employment. He was fairly dismissed during his probationary period because of his inability to engage effectively with the residents. The Complainant does not have 12 months service to pursue a claim under the Act.

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:

(a) an employee (other than a person referred to in section 4 of this Act) who is dismissed, who, at the date of his dismissal, had less than one year’s continuous service with the employer who dismissed him,

Section 6 of the Act in relevant part provides as follows:

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,

Section 6(2)(D) of the Act as inserted by the Protected Disclosures Act, 2014 makes provision as follows:

(2D) Sections 3 and 4 do not apply to a case falling within paragraph (ba) of subsection (2) and that paragraph applies to a person who would otherwise be excluded from this Act by any of paragraphs (a) to (c) and (e) to (k) of section 2(1).

Section 2(1) in relevant part provides: 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:

(a) an employee (other than a person referred to in section 4 of this Act) who is dismissed, who, at the date of his dismissal, had less than one year's continuous service with the employer who dismissed him.

The effect of these statutory provisions is that a dismissal which results wholly or mainly from the employee having made a protected disclosure is unfair and the employee is not required to have one year’s continuous service to obtain the protection of the Act.

The Protected Disclosures Act 2014 defines a protected disclosure at Section 5 in relevant part 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 r 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.

(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.

(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. 

This appeal is linked to PDD242. For the reasons set out in that decision, the Court finds that the Complainant has failed to establish that he disclosed a relevant wrongdoing during his employment, and accordingly has failed to establish that he made protected disclosures within the definition set out in Section 5 of the 2014 Act at that time.

On that basis the Court determines that no protected disclosures as defined by the Act were made by the Complainant during his employment.  The Complainant had accrued less than 12 months service when his employment ended. 

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 complaint under the Unfair Dismissals Act.

The Court determines that the complaint is not well founded.

The decision of the Adjudication officer is upheld.

The Court so determines.

	Signed on behalf of the Labour Court
	Katie Connolly
TH	______________________
31 July 2024	Deputy Chairman

NOTE

Enquiries concerning this Decision should be addressed to Therese Hickey, Court Secretary.