Complainant

Respondent

Parties

Rudi-Lee  McCarthy

Mayrange Limited

Representatives

Roderick Maguire B.L. (First Hearing), Barra Faughnan B.L. (Second Hearing, instructed by Charles B. W. Boyle & Son

 Peninsula Business Services

Act

Complaint Reference No.

Date of Receipt

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

CA-00061057-001

16/01/2024

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

CA-00061057-002

16/01/2024

The complainant commenced his employment with the respondent on June 27th, 2023, and it terminated on September 8th, 2023, a period of some six weeks or so.   The complainant has submitted that by operation of s. 6(2D) of the Unfair Dismissals Act 1977, he is not excluded from bringing his application by virtue of the fact that he has less than one year’s service and asserts that he made a number of protected disclosures in his meeting with HR on September 1st, 2023.

The hearing took place over two days: the first of these on April 24th, 2024, hearing submissions and evidence on the complaint under the Protected Disclosures Act.

The second hearing on October was devoted to the complaint under the Unfair Dismissals Act.

As a preliminary matter, the issue of whether a Protected Disclosure was made at the meeting on September 1st becomes critical in determining whether the jurisdiction of the Unfair Dismissals Acts is activated. A finding that such a disclosure was not made deprives the complainant of the protection of the Unfair Dismissals Acts in that he would not otherwise have acquired the qualifying service.

This is addressed in my Findings and Conclusions below.

Thecomplainanthadlefthispreviousemploymentrestauranttogotothe respondentrestauranttoworkwithHeadChef,KevinBurke,whowas a career inspiration for him. He was offered a long-term contractat€32,000perannum, workingthreefullthirteenhourshiftsandonehalf shift.

The complainant says there was a bad environment in the workplace with no team spirit, in contrast to other places he worked.  On July 22nd, 2023, he was at work when a kitchen porter put two pots into the storage area underneath the grill where pots were stored. 

He gave no indication of his presence.   When the complainant stepped back, not seeing the porter, who was on his hunkers, he fell over him and landed with his left arm onto the open flat top grill, which is approximately four feet wide.

He sustained serious burns. The reaction of staff was limited. One chef got a pan of water for him to put his arm into. However, it was not cold running water. The complainant was later told by hospital staff that if he had had water on the burns immediately, it would have reduced the severity. It was a basic health and safety response, according to the hospital.

The complainant had been trained in health and safety in previous jobs and he knew instinctively the right thing was to put it under water but there was no protocol in place for staff to follow, and he himself was in shock.

Theemployer did not have proper burn cream and what was there was insufficient to coverhis burns,sohe hadtolet them put two different types on his wounds. He had bad burns previously andheknewthat ‘overthecounter’remediesareforfirstdegreeburnsandhiswere worse. Overthefollowingfiveweeks he attended hospitalas anoutpatient and remained on medication.

He was on annual leave for the first two weeks that he was off with his injury the restaurant was closed. When it reopened, he was only paid €160 per week while he was off for three weeks.

He could not return to work sooner than August 28th and the doctors thought he was just about sufficiently healed but he was asked by his medical advisers if he was sure he was ready and he said he had no choice as he had bills to pay.

There was no reintroduction to work until September 1st, when he had a back to work interview with Marco Neves, HR, and Fernando Klein, General Manager. In that interview the complainant complained about the lack of communication in the kitchen.

He said that his injury was a result of poor communications. He wished to reassure the kitchen porter that he did not blame him for the incident, and he told the HP employees that lack of communication was a problem, and it led to accidents. He made it clear that he was complaining about health and safety.

The complainant filled out the Back to Work Form with HR and they told him that they would hold such a meeting and would speak to the head chef, and that they would be putting on classes on health and safety and taking other measures, such as having proper introductions and holding programmes, indicating that the HR personnel understood that this was a health and safety complaint.

While the Job description of the Complainant includes a section “Communications and Teamwork”, including the direction to “Keep clear communication with the team in order to prevent hazards (fire, slips, bumps, falls, etc)”, this was never implemented in practice.

On Friday September 8th, Kevin Burke, Head Chef asked to meet with the complainant and told him that he thought he was incapable of carrying his workload and he was letting him go at the end of the working week on Saturday, 9th September. He was paid one week in lieu of notice.

This was the very first he had heard of any issues with his work performance, and it was only after he made his complaint about the lack of communication and associated disclosures in his meeting on September 1st, that he was terminated.

No performance appraisal was ever notified to the complainant even though it is provided in the Employee Handbook, that “Performance Appraisals may take place on an annual basis with the employee’s manager. Employees will be notified in advance and provided with adequate information relating to the process. The purpose of the appraisal is to enable both parties to review progress, provide feedback and plan for the future.”

At section 4.7 of the Employee Handbook, a “Whistleblowing Policy” is set out. It sets out that all complaints will be fully investigated. No information in relation to these matters was ever shared with the Complainant, and no further information in relation to his experience was requested.

In terms of his injuries, the Complainant continues to be psychologically and physically severely affected by his injuries. He has recently been referred for further consultation with his plastic surgeon and a psychologist. He had significant difficulty securing employment, and sent numerous emails seeking work. He is currently working as a café manager which pays significantly less than his previous employment, but due to financial pressures he accepted the role.

The definition of protected disclosure is contained in s. 5 of the Act:

“Protected disclosures

(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 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, …

(d) that the health or safety of any individual has been, is being or is likely to be endangered,

……….

(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.”

In that context, the definition at s. 3 of the Act should also be noted:

“disclosure”, in a case in which information disclosed is information of which the person receiving the information is already aware, means bringing to the person’s attention.”

In addition, s. 13(2B) of the 2014 Act as amended by the 2022 act states that:

“In any proceedings under this section in respect of alleged detriment caused to a person, the detriment so caused shall be deemed, for the purposes of this section, to have been caused as a result of the person or another person having made a protected disclosure, unless the person whom it is alleged caused the detriment proves that the act or omission concerned was based on duly justified grounds.”

Detriment in this context includes, at s. 3(a) dismissal, under s. 13(3):

“(3) In subsection (1), ‘detriment’ means an act or omission referred to in any of paragraphs (a) to (q) of the definition of ‘penalisation’ in section 3, subject to the modification that references in any of the said paragraphs to a worker shall be read as a reference to the person to whom the detriment is caused.”

Section 6 of the 2014 Act states as follows:

“Disclosure to employer or another responsible person

6. (1) A disclosure is made in the manner specified in this section if the worker makes it—

(a) to the worker’s employer,”

Section 6 of the Unfair Dismissals Act 1977 states as follows:

“Unfair dismissal.

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,”

Under s. 13 of the 2014 Act, the Respondent must show that the termination (being a detriment under s. 3 of that Act) was based on “duly justified grounds,” and it shall be deemed to be caused by the protected disclosure until it is so justified.

In addition to contractual and common law duties to their employees, the respondent had obligations under statute, and in particular the obligations set out in sections 8, 9 and 10 of the Safety, Health and Welfare at Work Act 2005 (the text of which was included in the submission).

By operation of s. 6(2D) of the Unfair Dismissals Act 1977, the complainant is not excluded from bringing his application by virtue of the fact that he has less than one year’s service. He made a number of protected disclosures in his meeting with HR on September 1st, 2023.

It is clear from the specifics of the injures caused to the complainant and the lack of a safe place of work, safe system of work, proper procedures, training, first aid, or training in the case of a serious and specific danger, that the respondent failed and was continuing to fail in its duties to its staff in relation to its contractual duties and its specific duties under statute under ss. 8, 9, 10 and 11 of the Safety, Health and Welfare at Work Act, 23005 as set out above.

These failures were brought to the attention of the employer in this meeting and constitute protected disclosures under s. 5(3)(b) and (d) of the Protected Disclosure Act 2014, being both failures in relation to legal obligations, and specifically failures in relation to health and safety obligations to staff.

The correct procedures for training and appropriate health and safety measures had not been taken, as evidenced by the way that the Complainant was injured and subsequently treated while at work. It was clearly accepted by the Employer that the correct procedures were not in place by virtue of the undertaking by HR to put in place such steps during that meeting.

The consequence of raising these matters with the employer was that the complainant’s employment was terminated. He was not provided with any detail regarding this alleged underperformance, and not being able to carry his workload, either before or at the time of his dismissal.

In Dougan v. Lifeline Ambulances [2018] 29 E.L.R. 210 where the Circuit Court held that the close proximity in time between the protected disclosure and the dismissal of the applicants was a matter which entitled the Court to find that the protected disclosure had motivated the decision to dismiss. The Court held:

“There is the question of the connection of time. I have considered Mr Hanahoe's argument in reverse, but there is a connection in time. The protected disclosure to the Revenue was on 28 January 2016. It appears from Mr Hall's affidavit that, although it wasn't notified until some time afterwards, the decision to go ahead with the redundancies was on 10 April, that is a space of less than two and a half months afterwards, so there is a connection in time. I see Mr Hanahoe's view that there will always have to be some connection in time for any of these applications to be brought, but it is there nonetheless and it is a ground that was put forward.”

In Clarke v CGI Food Services Limited [2020] IEHC 368 Humphreys J. at paragraph 19 states:

“The employer claims that the dismissal of the plaintiff was due to performance issues, but it is also clear that the complaint about performance only began after the plaintiff started raising awkward questions. Unfortunately, it is not difficult to “performance manage” someone out of a job. Such a process is manipulative, of course, and insofar as it impacts on an employee’s wellbeing it is bullying and abusive; but decision-makers have to be alive as to how relatively easy it is to remove somebody from a position for ostensibly plausible reasons. On the other side of the equation, it is possible for someone who is dismissed for legitimate reasons to claim that removal was due to some improper purpose, or to characterise the imposition of legitimately high standards as the infliction of stress and bullying. The upshot really is that the court must look beyond mere face value on either side.”

In Royal Mail Ltd v Jhuti [2019] UKSC 55 the UK Supreme Court held that where the real reason motivation for the dismissal of a worker is because they made a protected disclosure and that fact has been hidden from the decision-maker by a person in the ‘hierarchy of responsibility above the employee’, the dismissal is automatically unfair, even though the decision-maker has relied upon an invented reason for dismissal in good faith. The Supreme Court held that it is the duty of the court “to penetrate through the invention rather than to allow it also to infect its own determination”. The Court held:

“Yes, if a person in the hierarchy of responsibility above the employee determines that she should be dismissed for one reason but hides it behind an invented reason which the decision maker adopts, the reason for the dismissal is the hidden reason rather than the invented reason”.

The need to scrutinise carefully an employer’s asserted motives for action is further emphasised in Recital 93 of the 2019 Directive which provides:

“Retaliation is likely to be presented as being justified on grounds other than the reporting and it can be very difficult for reporting persons to prove the link between the reporting and the retaliation, whilst the perpetrators of retaliation may have greater power and resources to document the action taken and the reasoning.”

In this case, the fact that the termination of the Complainant followed so swiftly from his bringing to the Employers attention a series of health and safety failures for the protection of all staff, was much closer in time than the Dougan case. As in Clarke, these issues were only raised after 1 September.

Under s. 8 of the 2014 Act, the disclosure is presumed to be a protected disclosure until that is disproved by the Respondent, and under s. 13 of the 2014 Act, the Respondent must show that the termination was based on “duly justified grounds,” and it shall be deemed to be caused by the protected disclosure until it is so justified.

The clear conclusion is as follows:

a.      The Complainant was injured as a result of health and safety failures by the Respondent, and his injuries were compounded by a range of such failures.

b.     The Complainant raised these issues with HR for the safety of the staff as a whole and the Respondent undertook to adopt better procedures and policies.

c.      The Complainant was terminated in his employment seven days later, without prior warning or complaint by his employer as to his work, and without utilisation of the procedure for performance review in the Employee Handbook.

The complainant has an exemplary record in his employment prior to this incident and  submits that as his dismissal resulted wholly or mainly from the employee having made a protected disclosure, he should be awarded the maximum of five years’ remuneration by way of compensation.

Evidence of complainant.

The complainant gave evidence on oath. (At the first hearing this was confined to the complaint under the Protected Disclosures Act. The second hearing heard evidence related to the complaint of unfair dismissal.)

The complainant set out details of his education and previous employment. He commenced work with the current respondent at the end of June 2023 and said that the kitchen area was small; about two-thirds the size of where he had previously worked.

He stated that communication was fundamental in a professional kitchen but that he had not been given any training in Health and Safety. In his previous employment there had been a protocol on communications, and he was also given comprehensive training, especially in health and safety principles.

He said that he only signed his contract of employment with the respondent after the accident which caused his burn injuries. He gave a detailed account of the accident and the follow up to it (which is as set out the in formal submission above).

He had a meeting with the hotel manager, Mr Klein and the HR Manager, Mr Neves on August 9th which lasted about forty-five minutes and at which they had a discussion about the accident. The complainant showed the manager his injuries and became quite emotional. In the course of the meeting, he also complained about the poor communications in the kitchen about recipes. He also raised other concerns about safety issues, specifically related to the handling of pots and confirmed that by this stage the ‘Incident Report’ in relation to the accident had been submitted and expressed the view that the accident could have been avoided.

He was of the view that both managers were dismissive of the accident and that their reaction was to ‘brush it off’.

He returned to work on August 28th and had a return to work meeting with Mr Neves on September 1st.

It took place in the restaurant, and he confirmed the account of the meeting as it appeared in the report of the meeting and said that he stated at the return to work meeting that his accident was caused by the management of the kitchen.

He said that it was clear that he was complaining about health and safety. No issue was raised about his performance.

In cross examination the complainant confirmed that there had been no discussion on communications. He used recognised code words to warn colleagues of his approach or proximity but no-one else did and communication was ‘miniscule’, and he did ask for general training in this regard.

In response to a specific question about whether health and safety was mentioned at the September meeting he said it had been, and he specifically referred to raising the absence of burn cream.

In response to a question from the Adjudicator as to what specific outcome he was hoping for from the meeting he said that he thought HR was there to represent him and to ensure that there would be no repetition of the incident which caused his burns.

The complainant has lodged claims under section 8 of the Unfair Dismissals Act 1977 and section 27 of the Organisation of Working Time act 1997 and alleged that he was dismissed as a result of making a protected disclosure in contravention of the Protected Disclosures Act 2014. This is denied by the respondent.

The complainant began employment with the respondent on  June 27th, 2023, as a Chef de Partie in the Library Street Restaurant. During his employment there were a number of issues noted with the quality of his work including being unable to complete task as promptly as required and numerous mistakes resulting in the destruction of a number of sauces and meals.

Furthermore, it was noted by his direct supervisor, head chef Kevin Burke, that he often required assistance from other members of staff to complete his allotted duties, resulting in a second member of staff having to be assigned to his section on some nights to ensure deadlines were met.

In July 2023, the complainant was injured and was on a period of sick leave until September 1st, 2023. A return-to-work meeting was held with the complainant and Mr. Neves.

At this point he accepted that he was fit to return to work and the return to work form was completed. This contemporaneous note detailed the topic of conversation and noted how best the respondent could support the complainant in his return to work.

From his return to work, the issues with the complainant’s work observed before his sick leave continued and he failed to perform his duties satisfactorily. The head chef decided to terminate his  employment in accordance with the provisions of his employment contract, in particular the probationary period section. He was told a decision had been made to end his employment on September 8th, 2023, and he was paid one week’s pay in lieu of notice as set out in his contract of employment.

The respondent wholly denies that the complainant was dismissed for making a protected disclosure. There were numerous issues with the complainant’s performance and as such the decision was made to terminate his employment in accordance with the probationary period term of his contract.

Furthermore, it is denied that any protected disclosure was made to the respondent.

CA00061057-001 – Section 8 of the Unfair Dismissals Act 1997

Section 2 of the Unfair Dismissals Act 1997 states,

“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 F9[…]

As such based on the fact that the complainant had less than twelve months service with the respondent, the respondent has sought to rely on section 6, subsection 2(ba) of the 1997 as follows:

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, …

Even if the alleged protected disclosure had been made, the complainant’s dismissal was unrelated to any disclosure. The Protected Disclosures Act 2014 defines a “protected disclosure” as being a “disclosure” of “relevant information.” (Section 5(1)) and  states that information is considered to be “relevant information”, in the reasonable belief of the worker, it tends to show one or more relevant wrongdoings, and it came to the attention of the worker in connection with the worker’s employment.” (Section 5(2)).

The 2014 also defines “wrongdoing” as follows:

“(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.” (Section 5(2)(3)).

The  complainant’s complaint does not fall within the definition of wrongdoing for the purposes of the 2014 Act as outlined. The Act limits the definition of wrongdoing and the list is therefore exhaustive for the purposes of disclosing “relevant information”.

In the UK decision of Everett Financial Management Ltd v Murell (EAT/552/02/MAA EAT/553/02/MAA EAT/952/02)where the Tribunal in determining that the claimant was not constructively dismissed as a consequence of making a “protected disclosure” stated,

"For the reasons we have set out, we must consider the petition in isolation; and, if it is thus considered, it is, in our judgment, clear that it did not disclose any information falling within section 43B at all. It referred to the fact that a number of concerns had been raised on the previous day (which of itself could not be and was not suggested to have been a qualifying disclosure) and thereafter simply sought assurances in the terms which we have summarised in setting out Mr Underhill QC's submissions. It ended by expressing the signatories' view that their request for assurance was legitimate and reasonable (which also of itself could not be and was not suggested to have been a qualifying disclosure). While the letter plainly referred to what may or may not have been a disqualifying disclosure on the previous day, on its own it was not capable, as we see it, of being a qualifying disclosure as defined by section 43B and, therefore, it could not have been a protected disclosure.”

It is submitted in the present case that such a complaint could have been submitted as a concern given the complainant was taking issue with working procedures and per Everett, the raising of a concern does not amount to a breach under the act.

Non-withstanding this, even if a protected disclosure was made it must be demonstrated that the dismissal resulted ‘wholly or mainly’ from the making of the protected disclosure.

The respondent relies on the decision in Dougan & Clark v Lifeline Ambulances Ltd (Unreported, Circuit Court, Comerford J), where Judge Comerford considered what circumstances would amount to substantial grounds for a Court to conclude that a dismissal has resulted wholly or mainly from the making of a protected disclosure.

In that case, Comerford J concluded that such factors would necessarily include: the temporal proximity between the making of the protected disclosure and the dismissal; whether any animosity arose between the parties as a result of the protected disclosure prior the dismissal; and whether the Complainant was treated in a less favourable manner to comparative employees who had not made protected disclosures.

Also see Mary Crowley O’Toole v Katherine Gordon & Company Limited HAD155 Labour Court [2016] 27 E.L.R 16 where the Labour Court found that claimant’s dismissal was not linked to a disclosure made by her under the Safety, Health and Welfare at Work Act, 2005 2 days before her dismissal.

The Labour Court referred to the decision in Tony and Guy Blackrock Limited v O’Neill [2010] E.L.R, where the court considered the test of causation between a disclosure made under the Safety, Health and Welfare at Work Act, 2005 and alleged penalisation. The Labour Court stated.

“it is necessary for a claimant to establish that the determent of which he or she complains was imposed ‘for’ having committed one of the acts protected by subs. 3. Thus the detriment giving rise to the complaint must have been incurred because of, or in retaliation for, the claimant having committed a protected act. This suggested that where there is more than one causal factor in the chain of events leading to the detriment complained of the commission of a protected act must be an operative cause in the sense that ‘but for’ the claimant having committed the protected act he or she would not have suffered the detriment.”

The complainant has not outlined, detailed or established adequately or at all, that his dismissal related ‘wholly or mainly’ from the making of a protected disclosure. Furthermore, even if the protected disclosure had in fact been made to Marco Calderia Sampaio Neves, Kevin Burke, in dismissing the complainant had no knowledge of any alleged conversation. As such any dismissal could not have been ‘wholly or mainly’ relating to the making of any protected disclosure.

It is submitted that the complainant’s work performance and conduct failed to meet the standards required and thus the respondent terminated his employment in accordance with the probationary period term of his employment contract.

CA00061057-002 – Section 27 of the Organisation of Working Time Act 1997

The complainant has alleged that he did not receive his annual leave entitlements upon the termination of employment. As per the annual leave entitlement calculation form (submitted with [pays lips in evidence), the complainant was paid for ten annual leave days during the course of his employment, five more than his actual entitlement.

It is wholly denied by the respondent that the complaisant was dismissed for making a protected disclosure. The complainant was dismissed for failures in work performance during his probationary period in accordance with the terms of his contract of employment.

Furthermore the respondent wishes to make clear that it has paid the complainant above and in excess of his full annual leave entitlement.

Without prejudice to the above, should the adjudication officer find any claim to be well founded, the award to the complainant must be proportionate to the harm suffered as per the principles laid out in von Colson and Kamann v Land Nordrhein-Westfalen [1984] ECR 1891.

Evidence of respondent.

(This is the evidence of the respondent insofar as it relates to the complaint made under the Protected Disclosures Act).

Mr. Marco Neves, HR Manager gave evidence on affirmation.

He said that the main purpose of the meeting on September 1st, was to facilitate the complainant’s return to work and therefore focussed on whether the complainant was, in fact fully fit to do so.

In relation to improving communications in the kitchen it was in fact he, (the witness) who suggested this. He denied, in reply to a direct question that any specific issues about the kitchen were raised and he said that no disclosure or complaint was made.

In cross examination he said that the meeting lasted only a few minutes, possible fifteen at most. Asked what prompted the discussion on communications the witness stated that he just wanted to welcome the complainant back to work.

He confirmed that no training had been undertaken with the complainant up to that point, but various courses were planned on fire safety and manual handling, but nothing on health and safety.

Questioned about the accident report form he said that he had read it but had not had it with him at the meeting. Asked whether it was safe to let the complainant go back to work without addressing the communications issues he said the main purpose of the meeting was to establish the complainant’s fitness to return to work.

The witness said that he did not recall the complainant making any clear complaint about health and safety, and repeated that he, (the witness) had raised the communication issue. He confirmed that the Head Chef was responsible for safety in the kitchen.

Mr. Fernando Klein, General Manager gave evidence on affirmation regarding his meeting with the complainant on August 9th which took place so that the complainant could sign his contract of employment.

There was no mention at that meeting of any concerns related to health and safety or any indication that the complainant felt unsafe. Communication in the kitchen was not discussed and he had no role in the subsequent termination of the complainant’s employment.

In response to cross examination the witness said that the complainant was fine at the meeting and not emotional and stated his desire to return to work at some stage and there was no reference to safety concerns.

What exactly is required in order to make a matter a ‘protected disclosure’ is, in the first instance, set out in the statute.

As noted in the submissions, the 2014 Act states that information is considered to be “relevant information”, if, in the reasonable belief of the worker, it tends to show one or more relevant wrongdoings, and it came to the attention of the worker in connection with the worker’s employment.” (Section 5(2)).

However, it does not end there. Questions will arise as to whether ‘information’ has actually been transmitted to the employer, whether it is relevant and whether it shows ‘relevant wrongdoings’, some samples of which are set out in the Act. 

Of relevance to this case the possible relevant criteria in the Act are.

 ‘that an offence has been, is being or is likely to be committed, 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,

and probably most relevant on these facts

‘that the health or safety of any individual has been, is being or is likely to be endangered’.

There were two meetings between the complainant and the respondent’s representative, but he has identified only that which took place on September 1st as the one at which he made the protected disclosure.

The report of the meeting (which the complainant accepted as being accurate, and which bears his initials) assumes important evidential significance, for the purposes of this analysis despite being relatively limited in the detail it contains.

One of the questions on the form is ‘Do you feel there is anything the Company can do to assist your return/help you in future? The answer, as recorded from the complainant is.

‘A catch up would have made easier the routine on the comeback; a talk with Tarcissio  (the colleague over whom he fell) just to make things more comfortable, improve communication’.

Other answers (as recorded on the form) include that.

 ‘It was an accident, first to happen, and there are courses on the way’, and ‘’He is happy to go back to work and get on with everything’.

In his oral evidence to the hearing the emphasis was somewhat different. Having confirmed the account that appears in the meeting report he asserted flatly that ‘management of the kitchen caused the accident’ and he was at pains to exculpate his colleague, over whom he had fallen, and as a result of which he sustained serious injury.

He also stated in oral evidence that ‘it was clear that he was complaining about health and safety’ at the September 1st meeting and also about communication about recipes.

In response to a question as to whether health and safety was ‘mentioned’ he replied that it had been. On another occasion he said that he had raised things ‘as a concern’.

The evidence of the respondent management contradicted this. 

Noting again that the complainant relies on the meeting of September 1st as the date of the Protected Disclosure it is nonetheless interesting that the only evidence from the August 9th meeting, (which, at forty-five minutes had been a much longer meeting) was that no reference was made to any health and safety issues, the primary grievance being one about communication in relation to recipes.

It is odd, though that a matter which assumed such a level of gravity a few weeks later was not even mentioned then.

In his sworn evidence Mr. Neves, in response to a question as to whether any disclosure or complaint had been made at the September 1st meeting, answered ‘No’. He stated that the primary purpose of the meeting was to welcome the complainant back to work  and that any conversation about improved communications had been initiated by him (Mr Neves).

In its written submission the complainant said he ‘was injured as a result of health and safety failures by the Respondent, and his injuries were compounded by a range of such failures’ and that he ‘raised these issues with HR for the safety of the staff as a whole and the Respondent undertook to adopt better procedures and policies’.

This is not, however what the evidence in the case shows.

The complainant’s determination to exculpate his co-worker is understandable in human terms but it may also be necessary as a prerequisite to transferring the responsibility for his unfortunate accident to ‘health and safety failures of the respondent’.

There is an obvious co-relation between any respective culpability. If his co-worker was personally responsible for the accident (and I make no finding on that point as it is not necessary to do so) then this may have the effect of diluting the responsibility of the respondent.

In fact, the actions of that worker in placing himself so close to the complainant and in such potentially hazardous circumstances are inexplicably lacking in foresight, as was his failure to notify the complainant that he was there. It is hard to imagine that additional safety protocols would be necessary to contra-indicate such actions which were self-evidently required.

However, that issue of liability for the accident is not the critical issue.

That is whether the complainant raised this as a disclosure at the September 1st meeting as he claims, (although he has clearly linked them); and the related (alleged) responsibility of the respondent and the fact that he brought this to their attention.

The second assertion in the complainant’s written submission  that ‘he raised this issue with HR for the safety of the staff as a whole’ was not supported by his own oral, or any other evidence, and neither was the assertion that the ‘respondent undertook to adopt better procedures and policies’.

In response to a question under cross examination as to whether Health and Safety was mentioned the complainant’s response was that it was in the context of better communications and the provision  of anti-burn cream.

The respondent did undertake to provide further training (although not in Health and Safety.)

So, we are left with the complainant’s assertion that ‘it was clear that he was complaining about health and safety’. Unfortunately for him neither his evidence at the hearing nor the report of the meeting support that assertion, and it is flatly, and credibly contradicted by the respondent’s witness, Mr. Neves.

It is also challenged; indeed, contradicted by the admittedly brief report of the meeting which is more important for its tone that its actual content, but there is nothing in either the tone or the content to suggest that this meeting was anything other than congenial. If it had been ‘clear that he was complaining about health and safety’ why did he initial the record of a meeting that made no reference to it?

This aspect of the applicable law was addressed by Hogan J. in Baranya v Rosderra Meats, [2020]IEHC 56, specifically the form (if any) in which it is necessary to make a disclosure.

In paragraph 41 of his judgment the following appears.

To my mind no precise form of words is required for this purpose: it would suffice that it was clear from the general context in which the communication had been made that a complaint in relation to workplace health or safety had been made by the worker concerned, either expressly or by necessary implication and that it tended to show that health or safety had been or would be endangered. One should also observe that Mr. Baranya also contends that he said that he was in pain “due to work”, although this is denied in emphatic terms by Rosderra.

The learned Judge continued.

42)  This is where the role of the fact finder assumes critical importance. Given the dispute as to what was actually said and the precise context in which those words were uttered, it fell to the Labour Court to make very clear findings of fact on these points. The Court was thus obliged to find the primary facts (i.e., what was actually said) and then to draw such conclusions or inferences (which are sometimes described as secondary facts) from those words and their surrounding general context as it thought appropriate.

43)  In essence, therefore, the issue for the Labour Court was first to ask what precisely did Mr. Baranya say and, second, to inquire whether, having regard to the general context of the words actually uttered, they amounted to an allegation of “wrongdoing” in the sense of both s. 5(2) and s. 5(3)(d) of the 2014 Act, i.e., did those words expressly or by necessary implication amount to an allegation tending to show that workplace health and safety was or would be endangered, even if that complaint was personal to him. The allegation must, of course, contain such information – however basic, pithy or concise – which, to use the language of s. 5(2) of the 2014 Act, “tends to show one or more relevant wrongdoings” on the part of the employer: to adopt the words of Sales LJ regarding a parallel provision in the corresponding UK legislation, the disclosure must have “sufficient factual content and specificity” for this purpose: see Kilraine v. Wandsworth LBC [2018] ICR 1850 at 1861, even if it does merely by necessary implication.

44)   If these two questions can be answered in the affirmative – a matter which I again stress is for the Labour Court as fact finder in the first instance and in respect of which I offer no view – then the complaint can be regarded, at least in principle, as a protected disclosure.

Applying these tests to my ‘fact finding’ in this case, and looking at the evidence, such as it is, of what the complainant said at the meeting on September 1st, I must ask.

‘did those words expressly or by necessary implication amount to an allegation tending to show that workplace health and safety was or would be endangered, even if that complaint was personal to him’

Or did the complainant’s statements.

‘contain such information – however basic, pithy or concise – which, to use the language of s. 5(2) of the 2014 Act, “tends to show one or more relevant wrongdoings” on the part of the employer’

The review above of the evidence strongly indicates that the retrospective assertion that ‘it was clear he was complaining about health and safety’ will not, of itself meet the two tests posed by Judge Hogan above in the absence of evidence to support it, nor will a vague reference to anti burn cream and improved communications elevate this to a ‘relevant wrongdoing’.

What is ‘clear’ in any communication is what is mutually understood by the parties to have been communicated, not what a party wishes they had said in hindsight, or even intended to say.

Indeed, the agreed report of the meeting, which the complainant approved contradicts it.

‘It was an accident, first to happen, and there are courses on the way’

While this may have been drafted by Mr. Neves, the document bears the complainant’s initials and rather than indicting the respondent, if anything it appears to exculpate it, and it goes someway to undermine any suggestion that ’workplace health and safety was, or would be endangered’ again at some point in the future.

The final answer on the report was ‘he is happy to go back to work and to get on with everything’ further undermines the assertion that ‘it was clear’ he was complaining at that meeting about health and safety and a possible future risk of danger.

This is an attempt by the complainant to retrospectively superimpose his stated intentions at the hearing on the actual exchanges and the language used at the workplace meeting but the evidence does not support it. The complainant at one stage used the word ‘mentioned’ in referring to the context in which health and safety issues were discussed, which while this is contradicted by other evidence is a weak basis for asserting that he brought information which meets the standard required by the legislation for a protected disclosure.

The burden of proof in such matters rests with the respondent to rebut the presumption that a disclosure has been made.

I find that it has done so. The oral and written evidence, including that of the complainant does not support his assertions that he comes close to meeting the tests set out above and I find that the complainant did not make a protected disclosure.

As a consequence, I also find the complaint of unfair dismissal is not within jurisdiction.

Finally, no evidence was offered on the complaint regarding annual leave payments, and it is not well founded.

For the reasons set out above, I find in respect of Complaint CA-00061057-001 that the complainant was not unfairly dismissed and Complaint CA-00061057-002 is not well founded.

Protected Disclosure, Unfair Dismissal, Jurisdiction