Complainant

Respondent

Parties

Vanessa  Corral

 Tulane Business Management Limited trading as Samuel Hotel

Representatives

  In person

IBEC

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-00059079-001

28/09/2023

The complainant was employed by the respondent as an accommodation assistant from October 2022 until June 2023. The complaint alleges an unfair dismissal in circumstances where the complainant stated she was exercising her rights under the Protected Disclosures Act, 2014.

The complainant also submitted several other complaints to the WRC in respect of her employment which are addressed separately in ADJ 000-44872. She claims to have been discriminated against on the grounds of age, religion and disability and that she was harassed and victimised in contravention of the Employment Equality Acts, 1998-2015. She has also submitted further complaints relating to bullying and harassment. The complainant also cites the respondent’s obligations under the Safety, Health and Welfare at Work Act, 2005 throughout her complaint documentation although no complaint is made to the WRC under this piece of legislation.

The complainant stated that she was dismissed for exercising her rights under the Protected Disclosures Act, 2014. The complainant alleges that she is firmly of the view that she was dismissed for reporting issues to the police that were occurring in the Hotel such as a postal parcel belonging to her that was opened by management and her reporting issues relating to the toxic culture being permitted by management at the hotel. In addition, the complainant outlined the concerns she raised to management concerning the use of undiluted chemicals in the cleaning of mattresses at the hotel and the dangers that this posed. The complainant alleges that her dismissal was an act of penalisation in contravention of the Act.

The respondent’s position is that the complainant was dismissed for misconduct. The respondent stated that the complainant left work on numerous occasions without permission and on each occasion was subject to a disciplinary process in line with the respondent’s procedures. While the complainant argues she was dismissed for leaving work and reporting issues to the police, the respondent stated that it had no issue with the complainant reporting issues to the police but leaving work to do so, without permission and on several occasions, ultimately resulted in the complainant’s dismissal.  The respondent refutes that the complainant was dismissed as an act of penalisation and does not accept that the complainant’s complaints to the police amounted to protected disclosures within the meaning of the legislation. In respect of the complaint relating to the mattress cleaning issue, this was one of a litany of issues that were raised by the complainant and addressed by the respondent in accordance with its standard operating procedures. The respondent refutes that this issue was a protected disclosure within the meaning of the legislation.

In conclusion, the respondent stated that the complaints are without merit and should be dismissed.

In the within complaint, the complainant did not have the requisite service to refer a complaint under the Unfair Dismissals Act, 1977. If the dismissal in question arises as an act of penalisation for making a protected disclosure, the period of one years’ service is not required, and the complainant is afforded the protection of the Act.

The complainant contends that she was penalised by being dismissed from her employment for making a protected disclosure. The protected disclosure that the complaint alleges to have made relates to her complaints to the respondent in respect of the way mattresses were cleaned at the hotel and the potential health hazards that existed as a result. In addition, the complainant also raised issues

The Applicable Law

Section 1 of the Unfair Dismissals Act 1977 dismissal is defined as follows:

“dismissal”, in relation to an employee, means— (a) the termination by his employer of the employee’s contract of employment with the employer, whether prior notice of the termination was or was not given to the employee

Section 2 deals with exclusions from the protection of the Act. Section 2 (1) provides:

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 dealing with unfair dismissal 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: (a) … ()

Therefore, in general a dismissal of an employee is regarded as unfair unless the employer has substantial grounds to justify the dismissal, and employee does not have the protection of the Act if they have less than one year’s continuous service.  However, the Unfair Dismissals Act 1977 has been amended by the Protected Disclosures Act 2014, section 11, by inserting the following:

11. (1) The Unfair Dismissals Act 1977 is amended—

(a) in section 1 by inserting the following definitions:

 ‘protected disclosure’ has the meaning given by the Protected Disclosures Act 2014;

‘relevant wrongdoing’ has the meaning given by the Protected Disclosures Act 2014;

(b) in section 6 by inserting the following paragraph after paragraph (b) of subsection (2):

“(ba) the employee having made a protected disclosure,”;

(c) in section 6 by inserting the following subsection after subsection (2C):

“(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).”;

(d) in section 7 by inserting the following subsection after subsection (1):

“(1A) In relation to a case falling within section 6(2) (ba) the reference in subsection (1)(c)(i) to 104 weeks has effect as if it were a reference to 260 weeks.”; and

(e) in section 7 by inserting the following subsection after subsection (2A):

“(2B) Where— (a) the dismissal of an employee results wholly or mainly from the employee having made a protected disclosure, and (b) the investigation of the relevant wrongdoing concerned was not the sole or main motivation for making the disclosure, the amount of compensation that is just and equitable may be up to 25 per cent less than the amount that it would otherwise be.”.

(2) Schedule 1 contains provisions for interim relief in cases where a claim is brought for redress for a dismissal which is an unfair dismissal by virtue of section 6(2) (ba) (inserted by subsection (1)) of the Unfair Dismissals Act 1977.

The effect of the section 11 amendments, as above, 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 Unfair Dismissals Act.  In addition, an award of compensation may be up a maximum of 260 weeks. However, if the dismissal did not arise wholly or mainly because the complainant made a protected disclosure, she would not have the protection of the Unfair Dismissals Act, 1977.

The Protected Disclosures Act, 2014,

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, F12[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 F14[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.

(4) For the purposes of subsection (3) it is immaterial whether a relevant wrongdoing occurred, occurs or would occur in the State or elsewhere and whether the law applying to it is that of the State or that of any other country or territory.

(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.

(5A) A matter concerning interpersonal grievances exclusively affecting a reporting person, namely, grievances about interpersonal conflicts between the reporting person and another worker, or a matter concerning a complaint by a reporting person to, or about, his or her employer which concerns the worker exclusively, shall not be a relevant wrongdoing for the purposes of this Act and may be dealt with through any agreed procedures applicable to such grievances or complaint to which the reporting person has access or such other procedures, provided in accordance with any rule of law or enactment (other than this Act), to which the reporting person has access.

(6) A disclosure of information in respect of which a claim to legal professional privilege could be maintained in legal proceedings is not a protected disclosure if it is made by a person to whom the information was disclosed in the course of obtaining legal advice.

(7) The motivation] for making a disclosure is irrelevant to whether or not it is a protected disclosure.

(7A) F20[…]

(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

Having considered the matter and the legal definitions regarding protected disclosures, I find that the issue raised in respect of the mattresses was a protected disclosure within the meaning of the Act at Section 5(3)(d) in respect of pouring undiluted chemicals onto mattresses where guests at the Hotel would sleep.

I find that the other complaints relating the complainant’s property and how she perceived she was being treated by her colleagues and management were not protected disclosures and were instead personal/ interpersonal grievances that related to the complainant’s employment.

Penalisation

The complainant alleges that her dismissal was an act of penalisation having made a protected disclosure.

In Paul O'Neill v Toni & Guy Blackrock Limited [2010] ELR 21, the Labour Court held that the detriment complained of must have been imposed “for” having made a protected act within the meaning of Section 27(3) of the Act when it found:

“It is clear from the language of this section that in order to make out a complaint of penalisation it is necessary for a claimant to establish that the detriment of which he or she complains was imposed “for” having committed one of the acts protected by subsection 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. This involves a consideration of the motive or reasons which influenced the decision maker in imposing the impugned determent.”

The Toni and Guy case firmly establishes the “but for” test as it is generally referred to in penalisation cases. 

Essentially, the complainant, in her complaint of penalisation, is arguing that if she had not raised the issue of the undiluted chemical being poured on the mattress or attended the police to report the issues that were occurring at work, she would not have been dismissed from her employment.

Conclusions

Having reviewed the written and oral submissions of the parties, I note that the complainant had been subject to disciplinary processes on numerous occasions for, inter alia, leaving work during her shifts without permission and attending a police station to complain to the police about different issues that were happening at work. Each disciplinary process resulted in a disciplinary warning and the complainant was eventually dismissed for gross misconduct for the warnings that were in place. In those circumstances, I do not find that there was a causal link between the protected disclosure being made and the complainant being dismissed. I find, therefore, that the complainant’s dismissal was not an act of penalisation for having made a protected disclosure relating to the cleaning chemical. On that basis, I find that the complaint is not well founded.

For the reasons stated above, I find that the complaint is not well founded.

Unfair dismissal, requisite service, Protected disclosure