Complainant

Respondent

Parties

Michael  Gilmartin

Boyle Chamber Of Commerce

Representatives

Self-Represented

Ms. MP Guiness BL, instructed by O'Dowd Solicitors

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00051705-001

14/07/2022

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

CA-00051705-002

14/07/2022

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

CA-00053476-001

29/10/2022

Complaint seeking adjudication by the Workplace Relations Commission under Section 11A of the Protection of Employment Act 1977

CA-00053476-002

29/10/2022

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

CA-00054689-001

25/01/2023

The Complainant commenced employment with the Respondent on 1st February 2012. The Complainant was a permanent, full-time member of staff, in receipt of an average weekly wage of €769.23. The Complainant’s employment was terminated by the Respondent on 19th September 2022, on the grounds of redundancy.

On 14th July 2022, 29th October 2022 & 25th January 2023, the Complainant referred the present set of complaints to the Commission. Herein, he alleged that he made various protected disclosures in the course of his employment, and that he suffered numerous acts of penalisation thereafter. In particular, the Complainant submitted that the Respondent removed all normal duties from the Complainant, that they isolated and generally failed to protect him in his role, and that they unfairly dismissed him from his employment. By response, the Respondent denied most of the complaints raised by the Complainant. From the outset, they denied that the Complainant raised a protected disclosure at all in the course of his employment. Regarding the purported acts of penalisation, the Respondent submitted that significant issues arose regarding the authority that funded the Complainant’s role eventually leading to the withdrawal of said funding. As a consequence of the foregoing, the Complainant role ceased to exist, and the Respondent was obliged to make Complainant’s role redundant.

An initial hearing in relation to this matter was convened for 19th May 2023. At the outset of this hearing numerous procedural issues were raised by the then representative for the Complainant. In particular, the Complainant, via his representative, made an application for the production of documents by a witness for the Respondent on a resumed hearing. In addition to the same, the parties fell into dispute as to whether the Complainant could maintain simultaneous complaints under the Unfair Dismissals Acts and the Protected Disclosures Act regarding the Complainant’s dismissal, with the Respondent submitting that the he was obliged, by virtue of the legislation, to elect between the two. Following extensive submissions on these points, the matter resumed for a two-day session, listed for 1st and 2nd August 2023. Unfortunately, the matter did not finalise on the latter of the two dates, and the matter was again listed for 15th March 2024. Again, the evidence of the witnesses did not finalise on this date and the matter was listed for a final session on 24th and 25th June 2024.

On foot of an application on the part of the Complainant, the Adjudicator exercised his authority under Section 41 of the Workplace Relations Act and directed a witness to produce certain documents in advance of a resumed hearing. The rationale for this direction will set out in detail below. At the outset of the resumed hearing dated 1st August 2023, the representative for the Complainant confirmed that the allegations of adverse treatment in the course of the Complainant’s employment would be considered under the Protected Disclosures Act, while the dismissal of the Complainant would be considered under the Unfair Dismissals Act. Without prejudice to the different burdens of proof imposed by the impleaded legislation, the Respondent agreed to present their evidence first.

Between the third and fourth hearing days of this matter, the Complainant’s representative came off record and thereafter the Complainant represented himself in a personal capacity. On the morning fourth day of hearing, the Complainant sought to enter a new booklet of papers in respect of evidence he intended to present. In circumstances whereby the Complainant’s former representative had previously issued a comprehensive booklet of papers, and the witness for the Respondent had been rigorously cross-examined on foot of the same, the Complainant was not permitted to enter a new booklet of documentation at this juncture. The Complainant was provided with a copy of the documents previously submitted on his behalf at the outset of the proceedings as well as a copy of the Respondent’s extensive booklet of papers. During the Complainant’s evidence, numerous objections were issued by counsel for the Respondent to the effect that the Complainant was seeking to enter evidence that had not been put to the Respondent’s witnesses. While the Respondent was generally correct in their assertions in this regard, the Complainant at this juncture was a lay-litigant and some latitude was provided in the application of this rule. As it became apparent that the matter was not to finalise in that session, the parties agreed to exchange and discuss certain documentation referenced by the Complainant in this evidence in advance of the resumed hearing, in an effort to mitigate some of the difficulties experienced by the Complainant in the application of this rule. Following the conclusion of the hearing, the Complainant raised issue regarding the veracity of a document entered into evidence by the Respondent. As this document is not relevent to the decision below, no further hearing was concerned in relation to the same.

The Complainant and his colleague gave evidence in support of their complaint, while two members of the Respondent’s board gave evidence in defense. On the final date of hearing, the Complainant called a resident of the Respondent’s business premises to give evidence in support of the dismissal element of his complaint. All evidence was given under oath or examination and was opened to extensive cross examination by the opposing side.

Aside from the those referenced above, no further issues as to my jurisdiction to hear the complaints were raised at any stage of the proceedings

The Respondent is a chamber of commerce, charged with promoting business and economic relations of their host town. In February of 2012, the Complainant commenced employment in the role of business development manager. By later 2013, it became apparent that the income generated by the Respondent may not be sufficient to maintain their business centre or the Complainant’s role. Prior to taking any decision in this regard, the Respondent explored alternative sources of funding. On foot of the same, the Respondent secured the contract as promoter of the Skillnet network. On securing this contract, the Complainant’s employment continued, albeit his role changed from “business development manager” to “network manager”. In 2019, the Respondent employed a person act as network manager, at which point the Complainant’s title was amended to “network administrator”. In this regard, the Respondent conceded that the Complainant did not receive an updated statement of main terms in relation to the amendment of his job title.

In this regard, “Role Skillnet” is a registered trading name of the Respondent. The purpose of the network is to facilitate training courses and business development in the northwest region. While the Respondent has ultimate responsibility for network, a steering group was established to provide certain advisory services. At the outset, the Respondent accepted that the Complainant should have received an amended contract of employment in both 2014 and 2019 to reflect the changes outlined above.

In evidence a member of the board stated that the Respondent relied upon the two employees to prepare all budget returns and submission to Skillet Ireland, the governing body for the contract. In this respect, the witness stated that until 2021, all documentation was signed without question. In this regard, the witness accepted that the documentation provided for the payment of a “management fee” to the Respondent, they mistakenly believed that this payment was for the disposal of the Respondent as the promotor of the service.

In 2020, a substantial additional payment was received under the guise of management fees. On receipt of these funds, both employees suggested that the same should be shared between the company and the staff. By email dated 20th November 2020, the Complainant outlined various different scenarios whereby the additional management fees received could be shared between the employer and the employees. In this regard, the witness for the Respondent stated that it was apparent that the Complainant expressed no concerns at all at this stage. Following some internal negotiations, the Respondent stated that a payment amounting to more than 15% of an employee’s gross salary was excessive. At this point, the witness for the Respondent stated that these negotiations effectively broke down. In this regard, the witness stated that he met with the Complainant on several occasions in December 2020 and early 2021, in an attempt to persuade the Complainant to meet with the board to discuss the matter. During this period, the Complainant intimated, for the first time, that the Respondent may have an exposure in relation to the manner of dispersal of this management fee and implied that the funds were not designed for retention by the Respondent.

In June 2020, the Network Manager submitted an application to the governing body for additional funding along with the standard management fee. In this regard, the witness stated that this application was unusual in that a draft version of the same was issued to two members of the board prior to being formally submitted.  By email date 3rd June 2020, the witness replied to these draft submissions stating that the Respondent had never directed their employees to insert any figure in any such applications. The Respondent made no further comment in relation to the application that was duly submitted by the Network Manager. At this juncture, the witness for the Respondent stated that the board did not comment or offer any views in relation to the levels of grant funding, management fees or any other items sought as part of such application. Notwithstanding the same, the witness accepted that the Respondent had the final sign off in respect of the application and was ultimately responsible for the content of the same.

On 13th May 2021, the employees met with two members of the Board, including the witness for the Respondent. During this meeting, the Respondent proposed an alternative bonus scheme to their employees. In this regard, it was agreed that the staff would be paid a bonus of 15% of any additional management fee accrued in the forthcoming years. While the Complainant indicated his dissatisfaction with this proposal, it was confirmed that this meeting that the same would be accepted.

Thereafter, in July 2021, the Network Manager raised concerns and requested a meeting in respect to concerns regarding the contracting organisation retaining the management fees and the contracts of employment in general. In advance of the meeting of 16th August 2021, the Network Manager issued an email containing the relevant operating guidelines in respect of the management fees. This correspondence also expressly stated that,

“We believe that retention of management fees by (the Respondent) may be a breach of funding conditions”

In advance of this meeting, the Respondent had taken advice from their auditors, a third-party firm of accountants, with the witness stating that he received reassurance that the Respondent was entitled to retain the fees. However, when the matter was further investigated, the auditors advised that an issue may well arise in relation to the manner by which the Respondent retained the managements fees. As similar concerns were raised by the Complainant and his colleague during the meeting of 16th August, the President of the Respondent organisation issued correspondence to the employees, stating that they were grateful to them for bringing the matter to their attention and advised that the Respondent was taking steps to address the matter directly. In this regard, the witness for the Respondent advised that they sought further expert advice in relation to this issue. He further stated that efforts were made to discuss the matter with the relevant governing body.

On 19th October 2021, whilst these efforts were underway, the Network Manager correspondened directly with the governing authority. In this correspondence, the Network Manager alleged that,

“Our contracting authority….have been retaining management fees since 2014. The management fees were approved for specific employees”.

In this regard, the witness for the Respondent observed that the correspondence was signed in the name of the Network Manager only, with the Complainant’s name being unattached to the same. Following the same, a number of Directors of the Respondent met with a representative of the governing body in November 2021. During this meeting, it was made clear to the Respondent that the retention of any management fee, for any reason, was contrary to the relevant guidelines.

As part of the Respondent’s contract with the governing body, a compliance visit was convened each year to audit the Respondent’s activities. Given the content of the earlier correspondence, and the subsequent meeting between the parties, this compliance visit was extended to examine the question of the claimed management fees from 2014 to date. Following this review, a compliance report was issued shortly thereafter. This report identified a significant difference between the costs claimed by the Respondent, and the fees incurred in the operation of the contract. While the Respondent immediately repaid the sums claimed for the previous year, and those  held on account, a significant payment remained owing to the governing authority thereafter.  

On 8th December 2021, the witness for the Respondent requested to meet with the Complaint and his colleague to discuss the budget for the forthcoming year. While the Complainant and his colleague indicated that they would meet, they strongly stated their view that the Respondent retained control over and responsibility for the relevant budget, and that, in their view, they had done nothing wrong. While the parties did agree to a remote hearing, they stated that the same would last for thirty minutes only and that the issue of the management fees would not be discussed at this point.

On 15th December 2021, the Respondent received the formal outcome of the compliance review, with a formal response requested within four weeks of the same. On 7th January 2022, the witness for the Respondent requested that the Complainant and his colleague contact the external auditors to provide whatever documentation is required. Unfortunately, this information was not provided as requested, with the consequence that the auditors were unable to complete the requisite accounts report by the deadline. As a result of this failure, the Respondent was unable to draw down a significant portion of funds, and the service was thrown into a difficult cashflow situation.

On foot of these developments, the witness for the Respondent requested to meet with the Complainant and his colleague on 2nd March 2022. As matters transpired, the Complainant and his colleagues demonstrated a reluctance to attend this meeting, but finally did so under protest. At this meeting the witness for the Respondent informed the Complainant and his colleague of the difficulties the Respondent was facing. As significant issues had arisen regarding the funds owed to the governing authority, the immediate cash flow situation and the future funding of the service, the parties were advised that their redundancy may be contemplated in the short term. The attendees were also instructed to cancel any forthcoming classes as the Respondent was unsure that it could meet any their ongoing financial liabilities, and could not accrue any further costs. The parties were also informed that the witness for the Respondent intended to collect boxes of records from the Complainant’s office.

By correspondence dated 4th March 2022, the Complainant re-iterated that both he and his colleague attended the meeting under protest. He stated that they were not provided with any agenda of the purpose or agenda of the meeting. As a consequence of the same, he stated that he was completely unaware that potential redundancies and operation changes would be discussing the meeting.

On 8th March 2022, the witness for the Respondent attended the premises with a view to collecting the relevant paperwork. In evidence, the witness stated that the Complainant initially prevented him from accessing the paperwork in question. Only following an exchange of email correspondence on the point did the Complainant allow the witness to attend to collect the information.

Despite the Respondent’s clear instruction to cancel all ongoing courses, it became apparent that the Complainant has refused to do so. By message dated 6th April 2022, the Complainant informed the Respondent that the organisation had “sufficient fund for all the courses we have booked”. The Complainant further indicated that he had to make personal payments to some trainers of the courses. By correspondence dated 13th April 2022, the Respondent stated that the matter of payments was to be escalated to the Respondent, and that the Complainant making personal payments in this manner is not appropriate from a financial, management or governance perspective. The witness also forwarded a copy of a grievance procedure to be utilised by the Complainant should he deem it necessary.

At this time, the Respondent was in the process of engaging with the governing body in relation to the issues contained in the compliance report and the nature of the relationship going forward. On 13th April 2022, the witness for the Respondent emailed the Complainant requesting details of courses that have already taken place, funds received from member companies and the payments due to the trainers arising from those courses. The Respondent also requested details of any course arranged for later in the year along with funds received for those courses. While the Complainant issued some responses, further questions arose in relation to the same. Thereafter, the witness requested a meeting with the Complainant for 26th April 2022. On the day prior to that date, the Complainant contacted the Respondent and advised that he did not intend to attend that meeting. In this regard, he stated that the Respondent’s earlier correspondence was “raw and undermining” and that the parties had to determine a way to address his concerns in an effort to move forward with the relationship.   

On 9th May 2022, the President of the Respondent wrote to the Complainant. Herein, he expressed concern regarding the cancellation of the meeting and sought to reschedule to a later date. The President further requested details of certain financial information that was necessary of the discussions with the governing authority. This correspondence expressly stated that,

“Your co-operation on these matters is required and it is indeed a fundamental duty as an employee of the Chamber to comply with your employer’s reasonable requests for information.”

This correspondence set out a schedule of nine categories of documentation to be received within seven days of receipt. While the Complainant provided some of the information required, further information was deemed necessary to reply to the governing body. In this regard, the witness for the Respondent met with the Complainant on 18th May 2022. In the course of this meeting the Complainant stated that he was under considerable distress and pointed to the fact that the Network Manager had been on sick leave for some time previous.

On 31st May 2022, the Respondent received notification that the funding agreement with the governing body had been terminated. On 3rd June a meeting was held with the Complainant to discuss this outcome and the potential consequences for his employment. At this meeting, the Complainant was informed that as the Respondent no longer had funding for his role, the same was being considered for redundancy. A further meeting was convened between the parties on 10th June 2022. At this meeting, the Complainant accepted that the Respondent could do nothing to accommodate him in the organisation and he enquired about the redundancy payment. A final meeting occurred on 22nd August 2022 whereby the Complainant’s termination on the grounds of redundancy was confirmed. While it was accepted that the Complainant retained some managerial duties in relation to the operation of the enterprise centre, the position of the Respondent was that these duties were minor in nature and could be untaken by the voluntary members of the board. An appeal in relation to the same was convened before an independent third party. In advance of this appeal, the Complainant submitted that while he accepted that his duties relating to the operation of the Skillnet contract had ceased, he stated that his role as centre manager remained. By outcome dated 19th September, the Complainant’s appeal was dismissed, and the termination of his employment was upheld.

On 29th August, following confirmation of the termination of his employment, the Complainant issued a formal grievance. This grievance alleged that the Respondent had penalised the Complaint for raising the issue of the management fee issues. In particular, the Complainant alleged that the Respondent removed the Complainant from workplace communications, changed internal procedures without notice, issued accusatory emails and removed him from various banking permissions. In evidence, the witness for the Respondent denied each of these allegations in turn. Regarding the issue in respect of the banking access, it was accepted that the Complainant was briefly removed from the same towards the end of his employment. In this regard, the witness stated that this arose as a consequence of the newly installed security measure imposed by the banks.  Regarding the grievance itself, the witness stated that the Respondent sought to engage the services of another third party representative to investigate the same. However, at this time, the Complainant’s internal appeal had finalised and his employment had terminated.

The President of the Board also gave evidence on the third day of the hearing. In evidence the witness confirmed the correspondence in his name opened earlier in the proceedings. Regarding the redundancy of the Complainant, the witness confirmed that he was the person that made the decision in relation to the same. In this regard, the witness stated that the vast majority of the Complainant’s duties related to administration of the Skillnet contract. Once the contract in question had been cancelled by the governing authority, the majority of the Complainant’s duties ceased to exist. The witness accepted that the Complainant retained some duties as centre manager, however these duties had reduced over the years, and by the estimation of the witness, accounted for less than ten percent of the Complainant’s overall duties. In this regard, the witness stated that the enterprise centre that the Complainant managed had few residents and that most rent payments were automated. In evidence, the witness stated that these duties could easily be completed by member of the board, and that there was no prospect of retaining the Complainant in employment with these duties only. The witness stated that the dismissal of the Complainant had nothing to do with his purported protected disclosure and stated that the same arose as a direct consequence of the loss of the contract.

By submission, the Respondent denied that the Complainant had been penalised in the course of his duties or that his dismissal was in any way connected to his purported protected disclosure. Regarding the latter point, the Respondent submitted that the Complainant had not established that he made a protected disclosure at any stage of his employment. In this regard, they submitted that the various emails and correspondence opened by the Complainant in this regard were issued by his colleague. While it may well be the case that the Complainant’s colleague made multiple protected disclosures in the course of her employment, these cannot be attributed to the Complainant. Regarding the dismissal of the Complainant, the Respondent submitted that the same clearly arose as a consequence of the governing body terminating the contract and the consequent implications for the Complainant’s employment. In this regard, the Respondent denied that they allowed the contract to simply terminate by failing to properly advocate for the retention of the same. In this respect numerous items of correspondence were opened detailing the efforts of the board in attempting to repair the relationship with the governing authority and ensure funding for the forthcoming years. Having regard to the accumulation of the foregoing points, the Respondent submitted that the Complainant’s applications under the Protected Disclosures Act and the Unfair Dismissals Acts should fail.

In evidence, the Complainant stated that he commenced employment with the Respondent on 1st February 2012 as an Enterprise Centre Manager. In the course of these duties, the Complainant was responsible for the booking of meetings, training at the centre, certain financial issues, caretaking at the centre and various other business development duties as they arose.

In January 2014, the Respondent was awarded a fund contract to the administration of the training network. As a consequence of the same, the Complainant was assigned the additional role of “Network Manager”, which was later changed to “Network Administrator”. In evidence the Complainant stated that while he assumed these new duties, the retained the duties of the centre manager. 

As part of this duties, the Complainant, along with his colleague, completed various grant applications for review by the Board. While the Complainant stated that he would prepare these applications, he submitted that he would do so under instruction from the Board and stated that the same were only ever prepared for review by the Board, who retained the final say in relation to the same. In the course of these duties, the Complainant became concerned regarding an ongoing discrepancy in Respondent’s accounting practices. In this regard, it was apparent that the Respondent was retaining management fees, when the service agreement mandated that these should only be used to pay the wages of the staff of the service. In evidence, the Complainant stated that both he and his colleague raised these issues on numerous occasions on an informal basis. He stated that these concerns would normally be raised around the time the grant application would be issued each year.

On foot of the Respondent’s continual refusal to respond to these concerns, the Complainant and his colleague requested a meeting with the Board to discuss these matters. During this meeting, the Respondent set out their belief that they were the body managing the contract, and that they were permitted to distribute the management fee in whatever manner they saw fit. By response, the Complainant and his college disputed this position, stating that specific rules existed regarding the manner by which the management fee could be distributed and setting out their concerns regarding the risk to network. Following this meeting, the Complainant observed a distinct change in the manner by which the Respondent engaged with both him and his colleague,

In August 2021, the Complainant and his colleague requested a follow-up meeting regarding these issues. During this meeting, the Complainant colleague set out, at some length, the position regarding the distribution of the management fee, and their concerns in respect of the same. Towards the end of the meeting, the Complainant stated that he felt isolated by management since raising the issue in the first place some months previous.

As it was apparent that no action was being taken on foot of the Complainant’s raising of these issues, he and his colleague took the decision to report the financial irregularities directly to the governing body. In this regard, the Complainant’s colleague drafted correspondence setting out issues raised previously with the Respondent regarding the management fee. While the Complainant accepted that this correspondence was signed by his colleague, he stated that he was intimately involved in the drafting of the same. He also referred that the correspondence reference the plural “we” in reference to the source of the concerns.

In the weeks following the disclosure above, the governing body commenced and completed a formal audit. Following same, the contracting body determined that a significant sum had been incorrectly claimed since the awarding of the contract. Regarding the correspondence, issued from the Respondent dated 11th November 2021, the Complainant stated that he believed that the same sought to absolve the Board of any wrongdoing in relation to this issue and place the blame, albeit somewhat indirectly, on the Complainant and his colleague.

Thereafter, the professional isolation experienced by the Complainant exacerbated significantly. In particular, the Complainant stated that in December 2021, he was removed from the Respondent’s banking facilities. This removal caused significant delays in the manner by which the Complainant could repay creditors, and created another layer of oversight that had not previously existed.

In March 2022, the Respondent dictated that all payments to creditors should be cancelled. In evidence, the Complainant stated that this caused him a significant amount of professional difficulty and embarrassment. In this regard, the Complainant stated that he had grown the network to double its previous size in the years prior to the audit. This growth was attributed in no small part to the Complainant’s relationship with suppliers and trainers that were now to remain unpaid. This direction regarding the freezing of payments was repeated in August and September 2022.

At this time, the Respondent took the unilateral decision to effectively cancel all ongoing classes. In evidence, the Complainant stated that the funding for these courses had already been secured and that there was no financial issues should have arisen regarding the provision of the training courses.

In May 2022, the Complainant was accused of preventing the Respondent from accessing documents. In evidence, the Complainant denied this allegation, stating that he did not prevent the director from accessing any documentation and that he sought to assist in the preparation of response to the governing authority to the best of his ability. At a meeting held in May 2022, the Complainant stated that these issues were causing him a significant amount of personal distress. During this meeting, when the Complainant set out his concerns regarding the allegation that he was retaining documents, he was described by a board member as being “paranoid”. 

At this time, the Complainant sought to raise a grievance in relation to the foregoing sequence of events. However, when the Complainant requested a copy of the Respondent’s grievance procedure, he was presented with a basic template document. The Complainant stated that this document did not provide any details regarding the manner by which he would raise a grievance, and to whom the grievance should be issued. When the Complainant did raise a formal grievance in accordance with this document, this was ignored by the Respondent.

In late 2021, it became apparent that the Respondent had missed their deadline for the response to the queries raised by the governing body. While the governing body issued further correspondence in this respect in January 2022, it again became apparent that this correspondence was not responded to. When the Complainant became concerned that the governing body were effectively being ignored, he sought confirmation that the Respondent that the responses had been issued. On 24th February 2022 the Respondent confirmed that they still had not issued a substantive response to the governing body. At this juncture, the Complainant became concerned that the Respondent seemed to be effectively ignoring the governing body, and did not seem to be taking any practical steps to retain the contract. Following the issuing of a direction to the relevant party to produce the documents in relation to this matter, the Complainant described the final offer as being “paltry” and stated that the same simply served to offer to pay the governing body back with their own funds over a period of time. In evidence, the Complainant stated that the Respondent did not undertake any meaningful steps to retain the contract. In this respect, he submitted that the Respondent appeared content to lose the contact in an effort to find grounds to terminate his employment.

On 31st May 2022, the governing body confirmed that they were terminating their agreement with the Respondent with immediate effect. Thereafter, in June 2022, the Complainant was placed at risk of redundancy and entered into a purported consultation process in relation to the same. While the Complainant accepted that many of his duties were connected to the contract, and that these duties had ceased with the termination of the contract, he submitted that at all times he retained his duties as the enterprise centre manager. In this regard he submitted that he was charged with collecting rents from the tenants of the building, that he opened and closed the centre each day and that he retained some duties in relation to business management and development for the Respondent. In evidence, the Complainant stated that these duties comprised a significant portion of his daily duties, and that the Respondent did not consider the same during the redundancy process.

In summary, the Complainant stated that he raised numerous protected disclosures in the course of his employment. Notwithstanding the foregoing, he submitted that these disclosures were formally raised in the meetings with the Respondent in May and August 2021. The Complainant stated that he, along with his colleague made a protected disclosure to the governing body in November 2021. Following these protected disclosures, the Complainant stated that he suffered continual and increasing isolation within his employment and he stated that his duties were almost entirely removed. In evidence, the Complainant stated that this adverse treatment cumulated with his dismissal on the grounds of a purported redundancy. Regarding this final point, the Complainant submitted that the Respondent failed to consider his other duties in this regard, and simply dismissed him without considering the same.

The Complainant called a resident of the business centre operated by the Respondent as a witness. This witness stated that the Complainant maintained various duties in relation to the operation of the centre, including the collection of rents, caretaking and key holding. In this regard, the witness stated that he was one of several tenants in the building.

The Complainant’s former colleague, the then Network Manager, also gave evidence in support of the Complainant. In this regard, the witness confirmed the correspondence of which she was an author. In this regard, she stated that while she was the signatory to much of the correspondence opened as part of the proceedings, same were drafted by both herself and the Complainant. The witness also gave evidence regarding the operation of the contract, and particularly the management fee section of the same.

CA-00051705-002 Complaint under the Protected Disclosures Act

Regarding the present case, the Complainant has submitted that he raised numerous protected disclosures in the course of his employment and suffered various acts of penalisation thereafter. While this complaint was initially referred by the Complainant in a personal capacity, submitted that the decision in relation to the same can be recorded in the complaint references below.

In this regard, I find that this particular complaint is deemed to be not well-founded.

CA-00053476-001 Complaint under the Protected Disclosures Act

Regarding this complaint, which was referred by the Complainant’s then legal representative, the Complainant alleged that he suffered various acts of penalisation in the course of his employment. At the outset of the second day of hearing, it was clarified that the acts of penalisation experienced in the course of the Complainant’s employment would be considered under this file reference, while the Complainant’s dismissal would be considered under the Unfair Dismissals Acts. 

Regarding the acts of penalisation suffered in the course of his employment, the Complainant stated that he made numerous protected disclosures in the course of his employment. Thereafter, the Complainant stated that he suffered continual professional isolation, that his access to banking services were removed and that his duties were vastly reduced. By response, the Respondent stated that the issue regarding banking access was imposed by a third party and they denied that the Complainant was isolated in the performance of his duties. Regarding the removal of duties, the Respondent stated that at the relevant time they experienced significant cash flow issues, and were obliged to halt all activities until such a time as the same were resolved. On a legal basis, the Respondent submitted that the Complainant did not issue a protected disclosure as defined by the legislation at any point of his employment.

In this regard, Section 5(1) of the Protected Disclosures Act defines a “protected disclosure” asa “disclosure of relevant information made by a worker in the manner specified”.

Thereafter, Section 5(2) defines “relevant information” as that which, “in the reasonable belief of the worker…tends to show one or more relevant wrongdoing”.

Section 5(3) goes on the enumerate the following as examples of relevant wrongdoings thar might give rise to a protected disclosure.

“(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”.

And,

“(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”.

By submission, the Complainant stated that the relevant wrongdoing in question related to part f, quoted above. As an initial point, it is common case that the contracting body is described as “a business support agency of the Government of Ireland”. In this respect the funds that are distributed to the Respondent for the purposes of are facilitating the contact may be described as funds of a public body. Regarding the other aspect of the section, the Complainant has submitted that he raised numerous allegations of the Respondent’s improper use of funds, being the management fee arising from the contract awarded by the governing body. In this regard it appears that this point was conceded by the Respondent themselves, in that they accepted that they retained the management fee in contravention of the agreement with the governing body and accepted that the at least some funds were due and owing to that body following an internal audit.

While is undoubtedly the case that the issue at hand constitutes a relevant wrong-doing for the purposes of the impleaded Act, the Respondent has submitted that the Complainant did not disclose the information as required by Section 5(3). In this respect, they stated that the disclosures in question originated from the Complainant’s colleague. By response, the Complainant stated that both he and his colleague acted in tandem, and that they both issued protected disclosures at the relevant time.

In this respect, the Complainant submitted that he and his college requested a meeting with the members of the Respondent Board to discuss the matter of the management fee in May and August 2021. A conflict of evidence arises in relation to the purpose of these meetings, with the Complainant and his colleague stating that the purpose of same was to discuss their concerns regarding the management fee, and the witness for the Respondent describing same as a negotiation in respect of the rate of pay. Notwithstanding the same, it is noted that correspondence issued by the Respondent on 26th August 2021, following the latter of the two meeting states that,

“It was useful to have the opportunity to hear from both of you on the matter of the additional management fee”.

This correspondence went on to state that,

“The (Respondent) has considered this matter in detail and as previously advised we are taking steps to address this matter directly”.

While this was an internal communication, it is noted that it was addressed to both the Complainant and his colleague.

In consideration of the foregoing, it can be seen that, by at least August 2021, the Complainant formed the view that the Respondent was not in compliance with the funding agreement with the contracting body and directly communicated the same to members of the Respondent Board. While the Respondent has submitted that these issues were communicated by the Complainant’s colleague only, the correspondence referenced above demonstrates that they viewed the issue as being raised by both parties during the meeting convened in relation to the issue. Having regard to the foregoing, I find that the Complainant personally raised the issue of the management fee with the Respondent by at least August 2021.

Notwithstanding the foregoing position, the Respondent has suggested that the issues reported by the Complainant could not constitute a protected disclosure by operation of Section5(5) of the Act. This provision provides that,

“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.”

In support of the same, the Respondent opened the Labour Court matter of Carr -v- Donegal Council PD/15/5. Here, the Court held that,

“There can be no doubt that the complaints made by the Appellant to his managers within the Service were made by him pursuant to the discharge of his duties as a Station Officer. All of the complaints alleged to be protected disclosures were made by him to the management of the service.”

In the High Court matter of John Clarke v CGI Food Services Limited and CGI Holding Limited [2021] 32 E.L.R.25, Humphreys J. held that, with regards to Section 5(5),

“…there are two requirements (an investigative function and misconduct other than by the employer), which must both be present to exclude something from the definition of relevant wrongdoing, and which are joined by the word “and”. In Carr the Labour Court not only addressed the duty to investigate, but also dealt with the second requirement as to whose wrongdoing was at issue, as noted above. Merely finding that the complaint was made pursuant to the discharge of the employee’s duties…would not be sufficient in itself to exclude it from the definition of a protected disclosure.”

Regarding the instant matter, it is common case that for the relevant period the Complainant was engaged as a “network administrator” by the Respondent. While the Complainant and his colleague had various duties regarding the preparation of budgets and grant applications on behalf of the Respondent, the final authority in relation to the same lay with the Respondent. In this respect it cannot be said that it was a function of the Complainant’s employment to “detect, investigate or prosecute” matters that may not be in compliance with the funding agreement between the Respondent and the governing body. As confirmed by later events, this function is the falls within the remit of the Respondent’s auditors and the auditors appointed by the governing body. In such circumstances, I find that Section 5(5) does not operate so as to bar the Complainant from having made a protected disclosure. 

Having regard to the accumulation of the foregoing points, it is apparent that the Complaint issued a protected disclosure as defined by the Act, by at least August 2021.

In relation to the second part of the test, the Complainant must demonstrate that he suffered some form of detriment as defined within the Act. In this regard, Section 1 of the Act defines “penalisation” as,

“…any act or omission that affects a worker to the worker’s detriment, and in particular includes—

(a) suspension, lay-off or dismissal,

(b) demotion or loss of opportunity for 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) unfair treatment,

(f) coercion, intimidation or harassment,

(g) discrimination, disadvantage or unfair treatment,

(h) injury, damage or loss, and

(i) threat of reprisal;”

Having regard to the list above, it can be seen that the definition of what may constitute “penalisation” is extremely wide and encompasses almost any form of adverse treatment that leads to a detriment. In addition to the matters above, it is noted that the Section refers to these instances “in particular”, and may include other, unenumerated, forms of adverse treatment.

Regarding the alleged detriments, the Complainant raised numerous issues that can be considered under two headings. Firstly, he believed that he was professionally isolated by the Respondent following the communication of the protected disclosure, and, secondly, he submitted that the Respondent unilaterally decided to remove the majority of his duties from him.

Regarding the former point, the evidence of the Respondent was that the Complainant and his colleague, in their roles as network manager and network administrator, acted independently of the Respondent in the day-to-day running of the operation. In this respect, they submitted that while the Board would always endeavour to provide support when it was required, the employees effectively operated of their own volition in the course of their duties. In the alternative, the evidence of the Complainant was that the parties had formerly enjoyed a friendly relationship whereby certain members of the Respondent would provide guidance in relation to certain operational matters. In evidence, the Complainant stated that following his protected disclosure, these normal communication ceased.

In this regard it is apparent that the day-to-day running of the contract fell under the duties of the Complainant and his college. In this regard, the Respondent’s correspondence of 26th August 2021 states that,

“…we rely on you and the network manager and the network administrator not only for the day-to-day running of (the contract)”.

In addition to the same, it is noted that the member of the Board of the Respondent are all voluntary members with their own employments and responsibilities separate to the activities of the Respondent. In this regard it stands to reason that the witnesses for the Respondent would not be involved in the daily activities of the organisation, and that the Complainant and his colleague would operate on a an independent basis.

While the Complainant has submitted that normal communication ceased between the parties, it is evident that the Respondent made numerous attempts to convene meetings in relation to the issue that had arisen. In this regard, the Complainant and his colleague sought to convene meetings in May & August 2021, to discuss the issue of the management fee and, incidentally, their own remuneration. Thereafter, the Respondent sought to convene meetings for 8th December 2021, 2nd March 2022 & 26th April 2022. While the Complainant attended the initial two meetings, he expressed disquiet at having to do so and evidenced some reluctance to discuss certain issues as they arose. Regarding the proposed final meeting, on the day prior to the same, the Complainant stated that he did not intend to attend as he wished for matters to be considered in a more formal setting. In consideration of the foregoing series of events, it is apparent that the Respondent was the party seeking to arrange meeting to discuss the issues that had arisen, with the Complainant expressing a certain reluctance to engage with the same. As a consequence, I find that the Complainant was not professionally isolated as alleged, and that he did not suffer this form of detriment as defined by the Act.

Regarding the second form of detriment, the Complainant has alleged that the Respondent removed the majority of his normal duties. In this regard, he submitted that he was requested to the cancel all courses that had previously been booked, and was instructed not to enter into any commitments regarding forthcoming events. By response, while the Respondent stated that these instructions arose as a consequence of the difficult trading situation arising from the termination of the contact by the governing body, they did not dispute that the Complainant’s duties were removed. While it is the case that the Complainant suffered no reduction in his wages or other contractual terms as a consequence of this decision, it is clearly the case that the removal of almost all an employee’s normal duties would constitute “unfair treatment” as envisioned by the subsection listed above.

The final point that must be demonstrated by the Complainant is a causal link between the detriment suffered and the protected disclosures. In this regard Section 12(1) of the Act provides that,

“An employer shall not penalise or threaten penalisation against an employee…for having made a protected disclosure”

In the matter of Aiden & Henrietta McGrath Partnership -v- Ann Monaghan [2017] 28 ELR 8, the Labour Court held that,

“Thus, the detriment giving rise to the complaint must have been incurred because of, or in retaliation for, the complainant 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 complainant having committed the protected act he or she would not have suffered the determined. This involves the consideration of the motive or reason which influenced the decision maker in imposing the impugned detriment.”

In the case of John Clarke v CGI Food Services Limited and CGI Holding Limited [2021] 32 E.L.R.25 Humphrey’s J. held as follows,

“Decision- makers have to look beyond the mere face value of either side’s arguments in a dismissal dispute given the ease in which a position can be contrived and manipulated Royal mail Group Ltd v Jhuti [2019] UKSC 55 considered.”

Humphreys J. went on to state that,

 “…the evidence here establishes substantial grounds for contending that the performance issues were an attempt, as put in the submission by the employee “to dress up the dismissal as a performance- related dismissal” As put by Lord Wilson in Royal Mail Group Ltd v Jhuti [2019] UKSC 55 at para.60,

“If a person in the hierarchy of responsibility above the employee……determines that, for reason A (here the making of a protected disclosure), the employee should be dismissed but that reason A should be hidden behind an invented reason B which the decision-maker adopts (here inadequate performance), it is the Court’s duty to penetrate through the invention rather than to allow it also to infect its own determination”

While the matter reference above related to a disciplinary process leading to dismissal, the same principle holds true in the instant case. In this regard, the Respondent’s motive for removing the duties in question from the Complainant must be interrogated to determine whether the same arose as a consequence of the protected disclosure.

In this regard, it is common case that following a receipt of the interim compliance report on 15th December 2021, the Respondent was informed that they owed a significant amount of funds to the governing body. As part of the initial reparations in relation to the same, the Respondent elected to return much of the funding received for that current year. In addition to the foregoing, the Respondent found itself in the position whereby it could not draw down funds that had been approved for the forthcoming year. Naturally, these developments had the effect of immediately plunging the Respondent into a significant cash-flow crisis. From the evidence of the primary witness for the Respondent, it is apparent that they Respondent was concerned that they would not be in a position to meet its ongoing liabilities, and it was in this context that the Respondent requested that all ongoing classes be cancelled. In response to this position, the Complainant stated that the many of the courses had been pre-paid and had been booked for some time. In this regard, he stated that the cancellation of the same, in many instances on short notice, caused him a professional loss of standing.

In this regard, while there is some merit to the Complainant’s argument, the fact remains that the duties in question were cancelled on foot of the outcome of the compliance audit and the immediate financial difficulties experienced by the Respondent. It is clear from the correspondence opened by the parties that these difficulties were severe and threatened the ongoing viability of the Respondent’s ability to perform their duties under the contract. The Complainant may not have agreed with the course of action taken by the Respondent, but it cannot be said that the same arose as a form of penalisation for his having made a protected disclosure some time previous. Rather, the contemporaneous correspondence and the evidence of the primary witness for the Respondent demonstrate the severity of the situation and the immediate actions they deemed necessary, including the cancelation of the courses, in an attempt to stabilise the Respondent during a period of crisis.

In evidence, the Complainant alleged that the Respondent removed his access to certain banking facilities following his reporting of a protected disclosure. While it is the case that the Complainant was temporarily removed from certain banking functions, it is apparent that this arose from the Respondent’s bank introducing a two-step verification process. It is further apparent that the Complainant was permitted to make certain transfers, but that the same had to be verified from another source. This is a common banking procedure adopted in or around the time cited by the Complainant. In such circumstances I find that the issue did not arise a consequence of the Complainant having made a protected disclosure.

In summary, I find that the Complainant made a protected disclosure to the Respondent by at least August of 2021. Thereafter, the Complainant suffered the detriment of having many of his duties suspended by the Respondent. While the Complainant has alleged that he was professionally isolated following the reporting the protected disclosure I find that this is not supported by the evidence presented. Finally, I find that the detriment in question arose not as a form of penalisation for having raised the protected disclosure, but as a consequence of the financial difficulties experience by the Respondent at the relevant time.

Having regard to the accumulation of the foregoing points, I find that the complaint is not well-founded.

CA-00053476-002 Complaint under the Protection of Employees Act

This complaint was not pursued by the Complainant and is deemed to be not well-founded.

CA-00054689-001 Complaint under the Unfair Dismissals Act

Regarding this complaint, the Complainant has alleged that his dismissal, whilst ostensibly on the grounds of redundancy, was actually a further form of penalisation for having raised a protected disclosure. As set out above, the Complainant via his then representative elected to pursue this matter under the Unfair Dismissals Act. By response, the Respondent submitted that following the cancellation of the contract by the governing body, the vast majority of the Complainant duties ceased, along with the source of funding for his role. On foot of the same, and following a comprehensive consultation process, they submitted that they terminated his employment fairly on the grounds of redundancy.

Section 6(1) of the Unfair Dismissals Acts provides that,

“…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.”

Section 6(4)c of the Acts expressly lists “redundancy” as a ground of dismissal which shall not be deemed to be unfair. In a situation whereby the Respondent can demonstrate that such a redundancy is substantively and procedurally fair, they may rely on the defence afforded by Section 6(4)C of the Act. In this regard, it should be noted that Section 6(6) of the Acts provides that the onus of proof in relation to the same lies with the Respondent.

In the matter of JVC Europe Ltd v Panisi [2011] IEHC 279, Charleton J stated that,

“It may be prudent and a mark of a genuine redundancy that alternatives to letting an employee go should be examined” and that “a fair selection procedure may indicate an honest approach to redundancy by an employer”.

As set out above, the Respondent stated that following the termination of the contract by the governing authority, the vast majority of the Complainant’s duties simply ceased to exist. In addition to the same, they submitted that the Respondent had no means by which to fund the Complainant’s salary, and that his role was no longer tenable. While the Respondent did accept that the Complainant retained some duties in relation to the enterprise centre itself, they submitted that these were minimal and could be completed by voluntary members of the board.

The Complainant’s case in this regard is two-fold, firstly he submitted that the Respondent did not make sufficient attempts to the negotiate with the Respondent and created a situation whereby the contracting authority was obliged to terminate the contract. Secondly, he stated that prior to assuming his duties in relation to the contract, he was engaged as a business development manager. While he accepted that the loss of the contract would affect his duties in relation to the same, he submitted that he should have reverted back to this role and retained his employment.

Regarding the initial point, it is common case that following the audit conducted by the governing authority in December 2021, the Respondent was informed that they owed a significant sum to the governing body in respect of incorrectly drawn down management fees. Thereafter, the Respondent entered into a period of negotiation with the governing body regarding the manner by which they intended to repay these sums and, in a broader context, repair the relationship between the parties.

In this regard, the Respondent opened various items of communication between them and the governing body. It should be noted that these documents were not initially disclosed to the Complainant as part of the internal process but were produced on direction by the Adjudicator on foot of an application on behalf of the Complainant’s then representative. This correspondence demonstrates that following the delivery of the interim report, the Respondent, and in particular, the primary witness for the Respondent, engaged in ongoing correspondence with the governing body in relation to the issue. Most notably, the governing body issued correspondence date 24th February 2022 stating that the Respondent had been guilty of a material breach of the contract and, in accordance with the terms of the agreement, they were given fifteen days in which to remedy same. By return correspondence dated 11th March 2022, the Respondent set out the issues in reviewing the data requested by the governing authority, and stated that they were endeavouring to issue a draft response as soon as possible. Thereafter, on 29th March 2022, the solicitors on record for the Respondent requested an extension in relation to the timeline and prosed a meeting in respect to certain matters. This correspondence also requested that the funding for the forthcoming year was to be released. During this meeting, convened for 3rd May 2022, the governing authority provided a list a documents previously requested by the Respondent, and issued a new deadline of 19th May in respect to a response to the same. On that day, a substantive response to the matter of concern was issued by the Respondent. In this regard, the Respondent suggested that the sums due to for the forthcoming year should be offset against the fees owed by the Respondent. While this did not serve to extinguish the entirety of the debt, it did significantly reduce the same, with the Respondent further suggesting that the final portion of the debt was to be recovered from the fees to be incurred for forthcoming year. Unfortunately, the governing authority elected not to accept this proposal, and proceeded to cancel the contract by way of correspondence dated 31st May 2022.

The position of the Complainant in relation to the foregoing sequence of events was that the Respondent did not make adequate efforts to seek a resolution with the governing authority. Regarding the offer issued by the Respondent, the Complainant described the same as “derisory”. In this regard, he stated that the proposal simply offered to re-pay the governing authority with their own money. In his view no reasonable body would accept such an offer, and in issuing the same, the Respondent purposefully creating a situation whereby the governing authority would be obliged to cancel the contract  

Having considered the Complainant’s arguments in this regard, I find that I not in agreement with the position adopted. Far from failing to engage with the governing body, the correspondence opened during the proceedings demonstrated that the Respondent took all reasonable efforts to engage with the governing body. While the initial deadline for response was not adhered to, it is noted that this was extended on agreement and that a substantive response was issued within the timeframe suggested. It is further noted that the Respondent engaged a firm of solicitors, presumably with expertise in dealing with such regulatory bodies, to correspond with the governing body and to advocate on their behalf. These efforts were undertaken by voluntary members, who had their own responsibilities outside of the organisation. Regarding the offer itself, the Respondent sought to offset the debt against the running costs incurred in the previous year and those to be incurred in the forthcoming year. In this regard it is apparent the Respondent sought to cover a substantial portion of their running costs from their own funds. In this regard, I find that the Respondent took all reasonable efforts to engage with the governing body and retain the contract in question.

Regarding the Respondent’s rationale for redundancy, it is noted that Section 7(2) (as amended) of the Redundancy Payments Acts provides that,

“An employee who is dismissed shall be taken to be dismissed by reason of redundancy if for one or more reasons not related to the employee concerned the dismissal is attributable wholly or mainly to-

a)     the fact that his employer has ceased, or intends to cease, to carry on the business for the purposes of which the employee was employed by him, or has ceased or intends to cease, to carry on that business in the place where the employee was so employed, or

….

c)      the fact that his employer has decided to carry on the business with fewer or no employees, whether by requiring the work for which the employee had been employed (or had been doing before his dismissal) to be done by other employees or otherwise.”

In this regard, the Respondent submitted that they were forced, by the termination of the contract, to cease all activities associated with the contact. In circumstances whereby such activites constituted the vast majority of the Complainant’s duties, they submitted that that the redundancy of the Complainant was lawful on this basis. In the alternative, while he accepted his duties in relation to the contract had ceased, the Complainant submitted that he still maintained a number of business development and caretaking duties.

While a significant conflict of evidence arose between the parties as to the portion of the Complainant’s working day that was taken with such duties, it is common case that with the termination of the contract, the majority of the Complainant’s duties had ceased to exist. While it is also common case that the Complainant had some duties outside of this contract, it is apparent that these duties could be undertaken by members of the board. In this respect, it would be unreasonable to expect the Respondent to retain a full-time employee in respect of these duties, particularly considering the financial difficulties caused by the withdrawal of the contact. Finally, it is noted that the Respondent organised consultation meeting, both internally and with an external third party, to consult with the Complainant and discuss these matters in advance of the any decision in relation his termination, both on the first instance and on appeal.

Having regard to the accumulation of the foregoing points, I find that the dismissal of the Complainant was fair for the purposes of the impleaded Act, and consequently I find that his complaint was not well-founded.

CA-00051705-001 Complaint under the Terms of Employment (Information) Act

By submission, the Complainant stated that while he received a statement of terms at or near the outset of his employment, this should have been updated on two separate occasions, given his change of his job title. At the outset of the proceedings, Respondent conceded this point.

Having regard to the foregoing, I find that that the complaint is well-founded.

CA-00051705-001 Complaint under the Terms of Employment (Information) Act

I find that the complaint is well founded and, consequently, the Complainant’s application succeeds.

Regarding redress, the Act permits an award of compensation not greater than the equivalent of for weeks’ remuneration in respect of any breach. In circumstances whereby the Complainant did receive a statement of terms, but the Respondent failed to amend the job title section of the same on two separate occasions, I find that the Complainant is entitled to the sum of €1,538.46, or the equivalent of two weeks remuneration, in compensation.

CA-00051705-002 Complaint under the Protected Disclosures Act

I find that the complaint is not well-founded.

CA-00053476-001 Complaint under the Protected Disclosures Act

I find that the complaint is not well-founded.

CA-00053476-002 Complaint under the Protection of Employees Act

I find that the complaint is not well-founded.

CA-00054689-001 Complaint under the Unfair Dismissals Act

I find that the Complainant was not unfairly dismissed and, consequently, the complaint is not well-founded.

Protected Disclosure, Redundancy, Terms of Employment.