knowledge 9 February 2021 |

Disputes – Investigations and White Collar Crime: Whistleblower Out of Time for Interim Relief

Background

The Protected Disclosures Act 2014 (the “2014 Act”) created a statutory mechanism which permits employees who contend that they have been dismissed wholly or mainly for having made a protected disclosure, to seek interim relief from the Circuit Court pending the determination of an unfair dismissal claim.  The application for interim relief must be made to the court within 21 days of the date of dismissal or such longer period as the court may allow.

Case before the court

In Cullen v Kilternan Cemetery Park Ltd,¹ the applicant had been the general manager with the respondent. He brought a claim for unfair dismissal relying on the 2014 Act and citing a disclosure of alleged planning irregularities which he had made to the respondent.  Some three months after his dismissal, he sought interim relief preventing termination of his contract of employment but being out of time, also asked the court to extend time to allow his interim application to proceed.

The applicant said that he had delayed as he was awaiting the outcome of an ultimately unsuccessful application for new employment.  It would have been inappropriate for him to have applied for interim relief while that was pending.  He also submitted that he had a duty to mitigate his loss and that it would also have been an abuse of process to request the court to continue his contract of employment with the respondent when he was in the employment of another.  He also argued that he had been awaiting the outcome of the respondent’s appeal process in relation to his dismissal and that it was appropriate and responsible for him to engage in that appeal process and to ascertain its outcome before embarking on an application for interim relief to the court. In this regard, he submitted that it would be fair and just for the court to extend the time to commence the 21-day period at the date that the internal appeal process had terminated.

Decision of the court

What were the grounds that would allow the court to extend time beyond the 21 days? This was the question that O’Connor J had to decide.

In the absence any directly relevant case law, O’Connor J first pointed to a number of decisions on applications for an extension of time for judicial review in planning matters.  These set out “instructive guidelines”.  He said that the issue also frequently arose in landlord and tenant cases in relation to an extension of time for the renewal of a lease.  However, he cautioned that these areas of law were not directly analogous.

He said that first, the employer and employee relationship was a unique one where an employee usually did not have equal bargaining power with an employer.  Secondly, there was frequently a public benefit in making a protected disclosure.  Thirdly, the period of 21 days was a short time to make an application to the court.

He said that in deciding whether to extend time here, each case should be considered on its own facts.  The court would assess carefully and critically any explanation for the delay.  The test was an objective test to be judged by what was fair and reasonable considering all the circumstances of the case.

He then set out a non-exhaustive list of factors which might require careful consideration by a court in deciding whether to extend time.  These were:

• The nature of the disclosure involved;

• The nature of the dismissal involved;

• The length of time involved since the expiration of the 21 days;

• The capacity and ability of the applicant to process an application to the court;

• The nature of the employer and employee relationship;

• The extent of legal advice afforded to an applicant;

• The extent to which the applicant might be able to explain the delay;

• The merits of the case and the issue as to whether the applicant had established an arguable case that there were substantial grounds for contending that there was a link between the protected disclosure and the dismissal to the extent that the dismissal resulted wholly or mainly from the protected disclosure;

• The prejudice that any party might suffer by reason of the delay in making the application;

• The extent to which in all the circumstances a court would deem it just and equitable to grant an extension of time to an applicant.

Applying the law to the facts, O’Connor J dismissed the application for an extension of time.  He pointed to the length of the delay which was excessive here considering all the other circumstances.  He did not accept the applicant’s reasons for the delay as objective reasons for granting an extension of time.

He also commented that the nature of the disclosure was one in which the applicant, in his role as general manager, should have taken active steps to address when in his employment, if he felt it was a genuine cause for concern.

The applicant had also engaged solicitors to advise him some eighteen months prior to his dismissal and he was therefore deemed to be fully aware of the law. He had attempted to use the protected disclosure as a sword of Damocles over his employer to enhance his negotiating stance. He was entitled to do so but it was not a good reason to grant an extension of time.

Finally, O’Connor J did not accept that the applicant had established an arguable case that there were substantial grounds for contending that there was a link between the protected disclosure and the dismissal to the extent that the dismissal resulted wholly or mainly from the protected disclosure.

Comment

This case was the first to consider the factors relevant to an extension of time for interim relief under the 2014 Act.  It provides useful guidance to both employers and employees on the approach that the court will take in relation to granting an extension of time and the wide variety of issues that can come into play.

Interestingly, the case also touched on the application of section 5(5) of the 2014 Act whose parameters are still being explored by the courts.  Under this provision, a disclosure will not be a “protected disclosure” under the 2014 Act if it relates to “a matter which it is the function of the worker … to detect, investigate or prosecute and does not consist of or involve an act or omission on the part of the employer.”

This is a two stage test which the court seemed to indicate was satisfied here as the applicant’s disclosure on alleged planning irregularities related to matters within his area of responsibility as the respondent’s general manager.  For a case where section 5(5) was held not to be satisfied, see our briefing here.