ADJ-00044626

Complainant

Respondent

Parties

Gerry  O' Connor

Clare Vehicle Testing Centre Limited

Complainant

Respondent

Anonymised Parties

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Representatives

Owen Swaine Swaine Solicitors

Alastair Purdy Alastair Purdy & Co. Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Schedule 2 of the Protected Disclosures Act, 2014

CA-00055332-003

01/03/2023

The Complainant was employed by the respondent since August 2017 and  continues to be employed by the respondent.

The complainant has submitted a claim that he was demoted in September 2022 following the raising of an issue with the respondent in January 2021 in respect of an alleged miscalculation of his bonus payment.  The complainant later lodged High Court proceedings in December 2021 in respect of the commission calculation.  The within complaint alleges penalisation following the making of a protected disclosure.

The complaint was submitted on 1st of March 2023 .

The complainant submits that

He was penalised by the respondent after making a protected disclosure.

The complainant submits that in January 2021 he raised an issue with the respondent 2021 in respect of an alleged miscalculation of his 10% bonus payment.  This issue centred on whether the bonus payment was calculated on a gross or net profit  basis and came to the complainant’s attention following a review of his financial affairs by his accountant.  

The complainant notified the respondent about this on 7th of January 2021 also pointing out that the profits as notified to the complainant were less than those recorded in the company accounts.

This letter to the respondent sought that the commission be recalculated and the balance due be paid to the complainant as well as compensation and costs to the complainant.

The complainant submits that the respondent replied to this by letter dated 18th of January disputing that the respondent had incorrectly calculated the bonus and refusing the undertakings sought.

 The Complainant on the 13th of December 2021, issued a Plenary Summons in the High Court seeking damages in respect of the bonus calculation and seeking damages for breach of contract and misrepresentation.

The complainant submits that he was demoted in September 2022 following an investigation into alleged misconduct which commenced in March 2022.

The complainant submits that the demotion resulted in him reporting to a more junior member of staff with a reduction in his responsibilities, but his pay remained the same.

The within complaint alleges penalisation following the making of a protected disclosure.

The respondent submits that

The complainant was paid a 10% bonus on the basis of Net profits after loan repayments.

In January 2021, the complainant wrote to the respondent asserting that his bonus had been incorrectly calculated and stating that it should have been based on gross profits not net profits. 

The complainant sought payment of the additional sums as well as compensation and legal costs.  The respondent replied to this on 18th of January disputing that there was a miscalculation in respect of the bonus and asserting that the agreement was that the bonus be calculated on the basis of Net Profits.

The complainant in December 2021 issued High Court proceedings seeking damages in relation to the commission bonus payments.

In January 2022 the respondent wrote to the complainant raising issues of alleged misconduct including allegations that the complainant had stolen materials from the test centre which he had returned when a customer came looking for them.

The complainant was suspended with pay pending an investigation into the allegations of misconduct in March 2022.

The allegations centred on items which had allegedly been removed from the test centre by the complainant without permission of the respondent as well as items belong to the respondent which the respondent alleges were sold by the complainant under false pretences. 

The outcome of the investigation was that there was  insufficient evidence to uphold the allegations against the complainant.  

The respondent lifted the suspension, and the complainant was requested to return to work in September 2022.

The complainant on his return was asked to report to K the foreman as K had done a better job than the complainant while the complainant was out and also the complainant was no longer speaking to the respondent which would have made it impossible for respondent to run the business if he was not on speaking terms with the foreman.

The complainant retained his level of pay but now reported to K.

The respondent submits that there was no protected disclosure and no penalisation.

Protected Disclosure

The Protected Disclosures Act 2014, as amended (the Act) defines a protected disclosure 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

I must now decide if the Complainant was penalised for making a protected disclosure.

Under section 12 of the Act, an employer is prohibited from penalising or threatening to penalise an employee for making a protected disclosure:

“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.”

Section 3 of the Act provides the following definition of penalisation:

““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,

(b) demotion, loss of opportunity for promotion or withholding of a promotion,

(c) transfer of duties, change of location of place of work, reduction in wages or change in working hours,

(d) the imposition or administering of any discipline, reprimand or other penalty (including a financial penalty),

(e) coercion, intimidation, harassment or ostracism,

(f) discrimination, disadvantage or unfair treatment,

(g) injury, damage or loss,

(h) threat of reprisal,

(i) withholding of training,

(j) a negative performance assessment or employment reference,

(k) failure to convert a temporary employment contract into a permanent one, where the worker had a legitimate expectation that he or she would be offered permanent employment,

(l) failure to renew or early termination of a temporary employment contract,

(m) harm, including to the worker's reputation, particularly in social media, or financial loss, including loss of business and loss of income,

(n) blacklisting on the basis of a sector or industry-wide informal or formal agreement, which may entail that the person will not, in the future, find employment in the sector or industry,

(o) early termination or cancellation of a contract for goods or services,

(p) cancellation of a licence or permit, and

(q) psychiatric or medical referrals;”

In order to prove penalisation as a result of having made a protected disclosure, a complainant must show a link between the protected disclosure and the alleged penalisation.  This is known as the “but for” test which was set out by the Labour Court in O’Neill v Toni and Guy Blackrock LimitedE.L.R. 21:

“… 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 suggests 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 detriment.”

On the evidence and submissions before me, I consider it appropriate in the first instance to consider whether the complainant made a protected disclosure within the meaning of the Act.

For an action to be a protected disclosure, an employee must disclose information which s/he has a reasonable belief tends to show relevant wrongdoing as per section 5(3) of the Act; the information came to the employee’s knowledge during the course of their work; and the employee must report the matter to a prescribed person which may include their employer.

The present case centres on the way in which the respondent calculated an annual bonus payable to the complainant.   The complainant asserts that he notified the respondent in January 2021 that his accountant had discovered irregularities in the calculation of the bonus.   The issue centered on whether the bonus payable to the complainant was calculated on a gross profit or net profit basis.  

The complainant when questioned at the hearing stated that he did not know what a protected disclosure was.   The complainant in his evidence stated that the issue he raised related to the calculation of his bonus.  The complainant stated that he had at the time in question noticed that there was an increase in trade at the test centre but yet there was no increase in his annual bonus which was based on profits.   

The complainant advised that he had asked his accountant to look into it and asserts that they discovered irregularities in the calculation of the bonus.    The complainant wrote to the respondent on 7th of January 2021 asking him to rectify the situation regarding the bonus and seeking back pay and compensation as well as costs.  The complainants letter also stated that the profits as notified to the complainant were less than those recorded in the company accounts.

The respondent replied to the complainant in writing by letter dated 18th of January 2021 and disagreed with the complainant’s assertions in relation to the calculation of the bonus stating that the bonus was payable on Net profit not Gross profit.

Following this the complainant issued a plenary summons to the High Court in December 2021 in respect of this matter seeking damages for breach of contract and misrepresentation.

The complainant at the hearing clarified that the issue raised by him related to the incorrect calculation of his bonus.   The complainant clarified that he was only  concerned with his bonus and the way in which it was calculated by the respondent.   I note that there was no reference to a protected disclosure in any of the complainant’s correspondence to the respondent notwithstanding the fact that the complainant was legally represented.

Having examined this matter in accordance with the test set out in the Act I am satisfied that this does not amount to a ‘relevant wrongdoing’ for the purpose of the Act .  Accordingly, I declare the claim to be not well founded.

I declare this claim to be not well founded.