knowledge 10 November 2016 |

Whistleblower’s Legislation –  First Statutory Injunctions and Penalisation Remedy Granted

While the Act has been a source of significant concern for employers in developing their procedures to deal with whistleblowing complaints, before this year few cases had come before the Courts to test these remedies and the Courts’ willingness to apply them. Indeed, the first application for injunctive relief in mid-2015, in the case ofDan Philpott v Marymount University Hospital and Hospice Limited, had led to a refusal to grant such an order. A claim for penalisation was also refused by the Labour Court in the case of Donegal County Council v. Liam Carr in June 2016, where the claimant could not prove that his disclosure was a protected disclosure.

However, the application of these protections was considered recently in the Circuit Court decision in Clarke & Dougan v Lifeline Ambulance Service Limited and Catherine Kelly v AlienVault Ireland Ltd and AlienVault Inc, where the Circuit Court granted interim relief and the Labour Court in Anna Monaghan v Aidan & Henrietta McGrath Partnership where the first recorded award for penalisation was made by the Labour Court.

Interim Relief – Circuit Court

Clarke & Dougan v Lifeline Ambulance Service Limited

Two employees had made a disclosure to the Revenue Commissioners in January 2016 in which they alleged that the Company had engaged in certain matters for the purpose of avoiding or reducing tax/ relation to “financial matters and wrongdoing within the Company”, which the employees alleged was a protected disclosure. Subsequently, these same employees were dismissed by reason of redundancy following a review by an external consultant.

Following their dismissal, the employees claimed that they were only dismissed for having made a protected disclosure. They sought interim relief under the Act, seeking either reinstatement or continuation of their salary pending the outcome of their respective claims for unfair dismissal before the Workplace Relations Commission. The Circuit Court held that while it was not satisfied that the employee’s dismissals were wholly or mainly due to the fact that they made a protected disclosure, they had met the lower threshold of establishing that there were ‘substantial grounds’ that the dismissal was for this reason and, therefore, granted an order of interim relief under the Act.

While Lifeline Ambulance did offer re-engagement in the course of the proceedings, offering gardening leave to one of the complainants and reengagement to the other paramedic, the Court found that the employees had reasonably rejected those offers and ordered that their salaries be paid until the hearing of their unfair dismissal claims by the Workplace Relations Commission.

Catherine Kelly v AlienVault Ireland Ltd and AlienVault Inc

A second order for interim relief was recently granted in Cork Circuit Court in Catherine Kelly v AlienVault Ireland Ltd and AlienVault Inc. The claimant, a manager of an IT office sought to restrain her employers from dismissing her or stopping her pay, following her disclosures to the Texas head office in the United States about “a catalogue of health and safety disasters” in the Cork premises in which 40 were employed. She was subsequently dismissed by telephone. The company argued the decision to terminate was made before she made her protected disclosure, the judge was satisfied the claimant had “made out a stateable case that she was dismissed because of protected disclosure” and granted her injunctive relief to restrain the company from dismissing the claimant or stopping her pay, pending a full determination.

These cases highlight that where an employer is contemplating dismissing an employee who happens to have made a protected disclosure, even if as a matter of fact there is no connection between the dismissal and the disclosure, the employer will need to be in a position to resist an allegation that there are ‘substantial grounds’ supporting such a connection.

Penalisation – Labour Court

Anna Monaghan v Aidan & Henrietta McGrath Partnership

The Labour Court also recently granted its first award for penalisation under the Act in a case brought by a care assistant at a nursing home in Galway. Here, the claimant brought concerns regarding the treatment of patients to the attention of the matron at the nursing home where she was employed as a care assistant.

The matron agreed to meet with her to discuss the matter. However, the claimant also organised a meeting with other care assistants in a pub without the matron’s knowledge.

On April 29 2014 the claimant was called to an appraisal meeting in which she was told she was a “trouble maker”. Her concerns were discussed and she was asked to put these concerns in writing, which she did on May 4 2014. The claimant stated she then made a number of calls to HIQA in relation to her concerns.

A HIQA inspection was carried out in May 2014 on the same day that her employer notified the health authority that they had initiated a ‘provider led investigation’ into the claimant’s allegations. The investigation found that the claimant’s allegations were motivated by malice and could not find any evidence to substantiate her claims. The claimant was subsequently suspended with pay on 20 June 2014 until 7 November 2014.

The claimant submitted that her suspension constituted penalisation within the meaning of Section 12 of the Act. While the employer claimed that the employee’s concerns amounted to a grievance rather than a protected disclosure, the Court in its decision found that while “a grievance is a matter specific to a worker”, a protected disclosure is “where a worker had information about a relevant wrongdoing”. In that respect, the Court held that the claimant’s concerns which related to the safety and welfare of patients amounted to a protected disclosure within Section 5(3)(d) of the Act.

The Court then considered whether this disclosure amounted to a penalisation under the Act. The Court noted that the provision was broadly similar to those found in the Safety, Health and Welfare at Work Act 2005. The Court applied the principle set out in Toni and Guy Blackrock Limited in which it was decided that the detriment giving rise to the complaint must have been incurred “because of, or in retaliation for”, the claimant having committed a protected act.

The Court decided that the suspension “was influenced by the complaints made by her prior to and in the course of the investigation”. The Court stated that “the undue haste which the suspension was effected without giving the complainant an opportunity to comment (having been invited to do so)…… reinforces the Court’s view that there was a causal connection between making the complaints by the complainant and her suspension”. It is also notable that the Court applied the Act, notwithstanding that this conduct complained of pre-dated the commencement of the Act. Therefore, in the view of the Labour Court, the claimant’s protected disclosure “was an operative reason” for her suspension and the respondent was ordered to pay €17,500 for detriment suffered.

As well as the award itself, this case also shows that employers need to have regard to the statutory presumption that a disclosure made is a protected disclosure and that a worker’s motivation in making such a disclosure does not affect any assessment of whether it is a protected disclosure. It is also worth noting that this case was an appeal from an Adjudicator’s decision which shows that while only these few cases have reached the public eye, there are likely far more occurring before adjudication officers.

Conclusion

These cases highlight the very significant protections under the Act and the Courts’ increasing willingness to apply these protections. These cases, particularly the two successful injunctions, may also prompt and encourage future whistleblowers to seek these reliefs with more confidence that the Courts are willing to grant these.

It is also worth noting that these are only two of the key remedies under the Act, an Unfair Dismissals claim with the potential for increased damage (up to five years’ remuneration) or a claim in tort have not yet been seen. All taken together, these cases show that the Act needs to be a material concern for employers, both in pre-emptively setting out policies and carrying out employee training, but also in dealing with protected disclosures (or purported protected disclosures) as they arise.