Complainant

Respondent

Parties

Ivan  Mladinic Pavicevic

Accenture Limited

Representatives

In person

Rosemary Mallon B.L. instructed by Lewis Silkin Ireland

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-00053909-001

26/11/2022

The complainant was employed by the respondent as a Service Delivery Ops Senior Analyst – Team Leader from 25th April 2022 until 24th November 2022. The complainant relates to alleged unfair dismissal. The complainant contends he was dismissed as an act of penalisation having made a protected disclosure to the respondent.

The complainant outlined his complaint by way of verbal submission and by submitting supporting documentation at the adjudication hearing. The complainant contends that he was dismissed for having made a protected disclosure. The complainant stated that he felt unsafe in respect of his working environment and how he was treated by a co-worker. The complainant stated that he raised this issue with management but that he was dissatisfied with the respondent’s efforts to address the matter and he continued to feel unsafe at work and sought a change of role within the organisation which was not facilitated.

The complainant stated that in respect of his final probationary meeting, his site access had been revoked on 25th October 2022 and he did not return to work thereafter. The complainant outlined that his partner was in hospital at the time, and he was unable to deal with the employer or attend the probationary meeting.

In respect of the reconvened meeting, the complainant stated that as his site access had been revoked on 25th October 2022, he saw little point in the extension of one week to complete the probationary process and did not attend the reconvened probationary meeting. The complainant stated that he had been told in a phone call from the respondent not to make any further contact with the employer.

The complainant stated that he was dismissed for “making waves” and that he was “not a fit culturally” for the respondent. The complainant stated in his verbal submission that there were no performance issues, yet he was “discarded like yesterday’s trash” and the person who treated him badly remains in the employment.

The respondent outlined in its written submissions that the complainant commenced his employment on 25th April 2022 and was subject to a six-month probationary period. The respondent stated that in and around late July 2022, the complainant was having some interpersonal issues with another staff member and an informal meeting was arranged for the respondent to address the issue. The respondent stated that the informal meeting resulted in the complainant receiving an apology and an assurance from his co-worker that the co-worker would be mindful of the complainant’s personal space when speaking to him. The respondent stated that although the complainant stated he was dissatisfied with the meeting in question, he did not wish to pursue the matter any further. The respondent stated that further incidents took place in September 2022 which resulted in a complaint made against the complainant and a further incident where the complainant was drinking alcohol while on his break during the evening shift contrary to policy and was asked to go home and not return that day. The respondent further stated that on or about 21st October 2022 the complainant sought a change of role within the organisation and that enquiries were being made if this was possible while the complainant was still on probation.

In respect of the complainant’s probationary meetings, the respondent stated that the complainant was invited to his final probationary meeting on the 25th October 2022 and did not attend. The meeting was delayed until 4th November 2022 and again the complainant did not attend. The respondent confirmed to the complainant that as a result of his nonattendance at his probationary meetings, his employment was being terminated as he had not passed the probationary period.

Legal submissions

Counsel for the respondent stated that the complainant did not make a protected disclosure within the meaning of the legislation. Notwithstanding this point, counsel stated that there is no causal link between the issues raised by the complainant in July 2022 and his dismissal and on that basis his complaint cannot succeed. The respondent contends that the complainant raised informal issues that were addressed as such. Counsel contends that the complainant was dismissed as a result of an unsatisfactory probationary period having failed to attend two probationary meetings and for drinking alcohol on one occasion while on the evening shift. Counsel contends that the dismissal of the complainant was reasonable and appropriate in the circumstances.

The within complaint relates to an alleged unfair dismissal. The complainant had less than one years’ service with the employer. He has submitted his compliant in accordance with the provisions of the Unfair Dismissals Act, 1977 in circumstances where he asserts that he has dismissed as an act of penalisation for having made a protected disclosure in the workplace.  

The respondent’s position is that the complainant did not make a protected disclosure within the meaning of the legislation. The respondent further asserts that if the complainant succeeds on that element of his compliant, he must show that the dismissal was an act of penalisation for having made the disclosure. The respondent’s position is that the complainant was dismissed during the probationary period for reasons unrelated to the issues he claims to have raised.

The Applicable Law

Section 5 of the Protected Disclosures Act, 2014 provides as follows:

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, 7B, 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 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 gross 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.

Penalisation

Section 3 of the Protected Disclosures Act, 2014, at relevant part provides as follows:

"penalisation" means any direct or indirect act or omission which occurs in a work-related context, is prompted by the making of a report and causes or may cause unjustified detriment to a worker, and, in particular, includes—

(a) suspension, lay-off or dismissal,

Conclusions

I have considered the submissions of the parties to this complaint. The complainant states it his dismissal was an act of penalisation for making a protected disclosure and the respondent contends firstly that the issue raised by the complainant was not a protected disclosure within the meaning of the legislation. The respondent further argued that if it is accepted that the issue raised by the complainant was a protected disclosure, the dismissal was unrelated to the disclosure in question and therefore not an act of penalisation.

The definition of a protected disclosure above relates to relevant wrongdoings and in the particular circumstances of the complainant raising concerns in relation to his safety at work vis a vis how he felt threatened by another employee, I am satisfied that the complainant made a protected disclosure within the meaning of 5(3)(d) of Protected Disclosures Act, 2014 when raising these issues to management in July 2022.

The complainant’s case relating to his dismissal centres on the assertion that he was dismissed as an act of penalisation a result of making the protected disclosure. On this point I note the detailed submissions of the respondent relating to issues of concern during the complainant’s probationary period and his failure to attend his final probationary meeting on two occasions as well as the fact that he was also in breach of company procedures in respect of drinking alcohol while on his break during an evening shift.

In all of the circumstances of the complaint, I find that there was no causal link between the protected disclosure and the dismissal. For the reasons stated above, I find that the dismissal arose as a result of a failed probationary period. Accordingly, the complaint fails.

Having considered the submissions of both parties, I find that the complaint is not well founded.

Unfair Dismissal, Protected Disclosure,

Cases cited by the respondent:

Barayna v Rosderra Irish Meats Group Ltd [2021] IESC 77

Southside Traveller’s Action Group v Imelda O’Keeffe. Labour Court Determination No: UDD1828