Complainant

Respondent

Parties

Aran  Burrows

Weltec Engineering Limited

Complainant

Respondent

Anonymised Parties

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Representatives

Ormonde Solicitors

 Heffernan Foskin 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-00062231-001

14/03/2024

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

CA-00062231-002

14/03/2024

The complainant, Mr Aran Burrows was on a fixed term contract with the Respondent, Weltec Engineering.  He was let go without warning about two weeks before the due date for the end of his contract and paid in lieu of the remaining time.  He alleges that this was because of a Protected Disclosure that he had made. 

Evidence was given at the hearing by oath/affirmation by the complainant Mr Aran Burrows, and on behalf of the respondent by Mr David O’Connor, HR Manager, Mr David Kerrigan, Construction Manager and Mr James Hacket, Health and Safety Manager.  All evidence was subject to cross examination. 

All documents submitted by parties were considered by me.

The complainant commenced employment with Weltec Engineering on 4th December 2024. He was issued a 3 month contract and during the course of his employment, following a request from the Construction Manager, he made a number of suggestions for improved efficiencies and disclosures relating to safety both verbally and specifically in writing  on 19th February 2024.  He had been informed by a supervisor and the Construction Manager that he would be made a supervisor on multiple occasions. On 21st February 2024 the complainant was informed that he was being made Safety Representative and would be provided with the necessary training.

By letter dated 19th February 2024 the complainant had submitted a written disclosure on a number of issues he felt needed addressing.  These disclosures were;

·       Lack of Managers and supervision

·       Lack of system or process in place for installing brackets

·       No quality control resulting in problems in the chain of work

·       Lack of equipment to carry out duties and refusal by management to order equipment

·       Lack of communication from management regarding job scope

·       Employees fear of reprisal or dismissal if they raised complaints or concerns

·       Veiled threats of reprisal or dismissal for raising concerns

·       Encouragement for fraudulent claiming credit or pay for work not complete

·       Health and Safety concerns such as lack of SOR’s; harnesses being left out; ladders being left out; tools not being signed out; cut shop not being cleaned and break times not being adhered to.

The complainant requested that this report be kept confidential because of fear of penalisation for having raised the protected disclosures.  However, management quickly became aware of the contents.

Section5. (1)  of the Protected Disclosures Act states;  

For the purposes of this Act “protected disclosure” means, subject to subsection (6) and sections 17 and 18 , a disclosure of relevant information (whether before or after the date of the passing of this Act) made by a worker in the manner specified in section 6 , 7 , 8 , 9 or 10 .

(2) For the purposes of this Act information is “relevant information” if—

(a) in the reasonable belief of the worker, it tends to show one or more relevant wrongdoings, and

(b) it came to the attention of the worker in connection with the worker’s employment.

(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, or

(h) that information tending to show any matter falling within any of the preceding paragraphs has been, is being or is likely to be concealed or destroyed

Section 12(1) of the Act states;

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.

On 23/02/2024, the complainant was informed that; due to "restructuring of contracts”, he was being let go; that his contract would be paid up and; not to attend work anymore. The complainant believes that his dismissal was as a direct result of the disclosures submitted during the course of his employment and, in particular, the written submission on 19th February 2023.  The complainant had not been made aware of any of the other allegations relating to WhatsApp messages until he received a copy of the respondent’s submission for this hearing. In any event these messages were only accessed on the day the complainant was let go and the decision to terminate his employment had already been taken.

The complainant was hired on a 3 month fixed term contract from 04.12.23 to 03.03.24 as a general operative. He had approached the Respondent looking for employment. The complainant was employed on the Intel site at Leixlip, County Kildare as semi-skilled labour to assist with bracket installation. He did not have any supervisory or administrative role; he was not a trade union representative; nor was he appointed by his fellow employees in any safety representative capacity. On 23.02.24 the Complainant was notified that his service would not be required for the remaining week of his contract and he was paid fully in lieu up to 3rd March 2024.       

The reason given to the Complainant for early termination was reorganization due to project schedule changes by the client and reorganization of site resources to align with these changes. There was a slowdown in activity on the site for the Respondent. Another general operative's contract was also terminated in similar circumstances on the same date and for the same reason.      

There was another reason for dispensing with the Complainant's services immediately. Matters came to light on 23rd February, unrelated to any communication made by the Complainant, which indicated his unsuitability for continuation of his employment, namely, fomenting grievance amongst other employees, affecting employee morale, seriously breaching health and safety rules, breaching Respondent company policy, and undermining the Environmental Health and Safety Officer. The Respondent did not consider it was obliged to disclose this to the Complainant, as his three-month contract was coming to an end. It was the Respondent's right to dispense with his services on termination of his contract by virtue of its expiry alone. Mr Burrows was informed by the HR Manager on 25th March 2024 that the Respondent was in possession of information that disclosed potentially criminal conduct by him. He was aware of this information.

The Complainant alleges that the so-called protected disclosures that precipitated the termination of his contract were in a document entitled "Are You Good in Bed" delivered by the Complainant to the site manager, unsolicited, on 19th February 2024 with his unsolicited CV. The Site Manager did not read the document, but notified the Project Manager on that date of the receipt of a long report from the Complainant, and its availability to the Project Manager, if he had time to read it.

The complainant did not describe the document entitled "Are You Good in Bed" as a protected disclosure. The Project Manager within the company did not identify it as containing anything in the nature of a protected disclosure, did not read it, did not identify it as serious or of sufficient importance to take any action on it, nor to pass it up to the Human Resources Manager or the Managing Director of the company for consideration. Neither of these parties were aware of the existence of the document until after its existence was disclosed in a telephone call to the HR Manager by the Complainant on 8th March 2024.

The complainant was never told he would be made a supervisor and all such posts are filled by employees with a ‘Trades’ qualification.  Equally, the position of Safety Representative was a matter for the workforce to elect.

The management team taking the decision to dispense with the Complainant's service on 23rd February 2024 during an on-line conversation was unaware of the content of the document "Are You Good in Bed" and no reference was made to it, nor reliance placed on it in the decision to terminate the Complainant's contract.

There are formal systems for reporting safety issues generally, and serious breaches of health and safety. The Complainant was familiar with the Weltec Safety Observation Record (SOR) system which exists for all employees to raise safety observations. The Complainant utilised this system, raising four observations in all.

 The document "Are You Good in Bed" is not, and could not be understood to be, a disclosure of relevant wrongdoings. It lacks specificity about who did what, where, and when. There is no reference to a specific offence committed or about to be committed. There is no identification of the person who has failed to comply with a legal obligation. There is no identification of the individual whose health or safety is, was, or likely to be endangered. The document "Are You Good in Bed" is not a disclosure of relevant information and falls outside the scope of the Act.

CA-00062231-001 Protected Disclosures Act, 2014

Evidence was given at the hearing by the HR Manager that the decision to end the complainant’s employment on the date specified in his contract was in part due to reorganisation but also concerns that had arisen when the company became aware of certain WhatsApp messages between the complainant and an ex-colleague.  Details of these messages were given at the hearing.  There is no necessity for me to detail the content but I am satisfied that the contents could give rise to serious questions being raised as to the suitability of the complainant as an employee and whether his fixed term contract should be renewed even if there were not reorganisation grounds underpinning the decision not to renew. The sworn evidence of the respondent witnesses was that a meeting was convened immediately when the messages came to light.

The trail of messages undoubtedly caused concern among the managers when they were uncovered.  The complainant has sought to diminish the importance of these messages on the basis that it should be clear that he was not being serious.  Perhaps the same rational should be applied to the purported protected disclosure i.e. A document entitled ‘Are you good in bed’ sent by way of a link, might not be taken seriously.  If it was intended to be a report to be taken seriously and raising protected disclosures then why give it a title that would inevitably detract from its importance.  If it was intended to be a protected disclosure then I think the respondent could be forgiven for not recognising it as such.  In any event, I accept the evidence given at the hearing that the decisions makers in relation to ending or not renewing the complainant’s contract were unaware of the contents of that letter at the time of making the said decision and therefore could not have penalised the complainant for a making  a protected disclosure of which they were unaware.

Accordingly I find that the complainant was not penalised for making a Protected Disclosure.

CA-00062231-002  Unfair Dismissal

The complaint of unfair dismissal was withdrawn at the hearing

CA-00062231-001  Protected Disclosures.   The complaint is not well founded.

CA-00062231-002  Unfair Dismissal.  The complaint was withdrawn

Penalisation, protected disclosure, fixed-term renewal.