ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00048272

Parties:

Complaint:

Date of Adjudication Hearing:  27/02/2024

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and Schedule 2 of the Protected Disclosures Act 2014,following the referral of the complaint to me by the Director General, I inquired into the complaint  and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Background:

The complaint is that the Complainant was penalised by being wrongfully dismissed for having made a protected disclosure.

Summary of Complainant’s Case:

The Complainant was employed by the Respondent as a Rental Agent from 18th May 2022 to 18th April 2023.  He raised issues with the employer regarding break times and probationary time period.  He was then dismissed without due process. The Complainant’s case is that his dismissal was in direct response to his legitimate request for his legally entitled break times, and for pointing out that Irish law had been amended to provide that an employee’s probationary period may not exceed six months.

Summary of Respondent’s Case:

The Respondent notes that the Complainant has lodged a complaint under Schedule 2 of the Protected Disclosures Acts, 2014 (as amended) (“2014”). Any complaint under this provision, relates to alleged acts or omissions by the Respondent pursuant to Section 12 of the 2014 Act. Under Section 12 (1) of the 2014 Act, an employer is prohibited from penalising or threatening to penalise an employee for having raised a protected disclosure. This provision is subsequently qualified by subsection (2) whereby this does not apply to dismissal of an employee under Section 6 (2) (ba) of the Unfair Dismissals Acts, 1977 (as amended). On the basis of this provision the Complainant’s complaint is limited to that pleaded and is unable to contest the decision to terminate his employment. 

The Respondent seeks a decision on this preliminary jurisdictional matter.

Findings and Conclusions:

Preliminary Issue

At the hearing the Complainant was unrepresented and he advised that he could not understand the preliminary issue on the jurisdictional point made by the legal representative of the Respondent.  Prior to the hearing, the Complainant’s former solicitors wrote to the WRC stating that they would not be representing their former client in any proceedings “due to the failure of a condition precedent”.

The Complainant was given two opportunities post hearing to address the issue raised by the Respondent’s solicitor.  Specifically, the Complainant was requested to respond, and two deadlines were given.

He was asked to respond to the respondent’s request for a preliminary decision by 19th March 2024.       In a letter dated 3rd April 2024 he was advised that as he had not replied to the request for a submission, the Adjudicator would move to issue a preliminary decision on the point made by the Respondent, as specifically requested by the Respondent’s solicitor. On 3rd April 2024, he replied that he did not understand what he was to submit.                                                                   

On 26th April 2024 the Complainant was provided with one last opportunity to either respond to the point and/or advise if he would have representation for a reconvened hearing. He was reminded that the point made by the solicitor at the hearing was the following:

“We note that the Complainant has lodged a complaint under Schedule 2 of the Protected Disclosures Acts, 2014 (as amended) (“2014”). Any complaint under this provision, relates to alleged acts or omissions by the Respondent pursuant to Section 12 of the 2014 Act. Under Section 12 (1) of the 2014 Act, an employer is prohibited from penalising or threatening to penalise an employee for having raised a protected disclosure. This provision is subsequently qualified by subsection (2) whereby this does not apply to dismissal of an employee under Section 6 (2) (ba) of the Unfair Dismissals Acts, 1977 (as amended).  On the basis of this provision the Complainant’s complaint is limited to that pleaded and is unable to contest the decision to terminate his employment.

 On 26th April 2024 the Complainant was requested to respond within 7 days if he was requesting a reconvened hearing and if he would respond to the preliminary point made.  He was asked to advise if he had secured representation and if so, what is the name and contact details.                                        The Complainant did not reply.  By letters to the WRC dated 7th May 2024 and 4th June 2024 the Respondent sought a written preliminary decision.

The applicable law

Section 11 of the Protected Disclosures Act 2014 amends the Unfair Dismissals Act 1977 at Section 6 (2)(ba) which deems the dismissal of an employee to be an unfair dismissal if it results wholly or mainly from the employee having made a protected disclosure.

Section 12 of the Act provides:

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.

(2) Subsection (1) does not apply to the dismissal of an employee to whom section 6(2)(ba) of the Unfair Dismissals Act 1977 applies.

The Complainant contends that he was unfairly dismissed for having made a protected disclosure.        In accordance with the provisions of Section 12 (2) which provides that subsection (1) does not apply to the dismissal of an employee to whom section 6(2)(ba) of the Unfair Dismissals Act 1977 applies I find his complaint is misconceived under the Protected Disclosures Act 2014 and I declare the complaint is not well founded.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.  Schedule 2 of the Protected Disclosures Act 2014 requires that I make a decision in accordance with the relevant redress provisions under Section 12 (1) of that Act.

I have decided that the complaint is not well founded.

Dated:   11/06/2024

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

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