knowledge 9 February 2021 |

Disputes – Investigations and White Collar Crime: Whistleblowing in 2020

When does a grievance become a protected disclosure?

February 2020 saw the first High Court judgment of the year on whistleblowing.  This was in the case of Baranya v Rosderra Irish Meats Group Ltd.¹  In that case, the plaintiff argued that he had been unfairly dismissed after making a protected disclosure.  The plaintiff complained to his employer that his work was causing him pain and that this communication was a protected disclosure within the meaning of the Protected Disclosures Act 2014 (the “2014 Act”).  His employer argued that this was a “grievance” rather than a protected disclosure as it was specific to the employee and did not involve a “relevant wrongdoing” within the meaning of the 2014 Act.  The Labour Court agreed and rejected the claim.  This decision was upheld on appeal where it was noted that the Labour Court had not held that a grievance could never be a protected disclosure.  Instead, during the course of submissions, the Labour Court indicated that it was of the opinion that there was an effective spectrum.  Certain matters would clearly comprise a grievance only.  On the other end of the spectrum, there were matters which were clearly categorised as a protected disclosure.  Between these two extremes there was the possibility that a grievance and a protected disclosure would overlap.

Protected disclosures should be communicated in accordance with the Act

Judgment was also given in February in Hosford v Department of Employment Affairs and Social Protection.²  There the plaintiff unsuccessfully complained in the Labour Court that a workplace disciplinary process against him was penalisation for having made a protected disclosure.  On appeal to the High Court, it was accepted that the plaintiff had made a protected disclosure.  However, the defendant objected to the plaintiff’s workplace conduct following that disclosure and so commenced the disciplinary process against him.

In dismissing the plaintiff’s appeal, the High Court pointed out that to enjoy the protection of the 2014 Act, under sections 6-9, a disclosure must be made to a specified person, such as an employer.  While section 10 allowed some deviation from this requirement, in all the circumstances of the case, it had to be reasonable for the worker to take this course.  However, in this case, having made protected disclosures to relevant personnel and authorities, the plaintiff had engaged in repeated communication on those matters with a wide range of persons in what the defendant considered an unacceptable manner.  Meenan J pointed out that the Labour Court had been satisfied that the plaintiff’s repeated dissemination of matters, the earlier disclosures of which were protected disclosures, could not be regarded as protected disclosures of the same matters.  It had been persuaded that the initiation of the disciplinary procedure was founded, amongst other things, on the manner of the plaintiff’s repeated widespread communication rather than any matter associated with his having made a protected disclosure.  The High Court saw no reason to interfere with this decision.

First High Court judgment on interim relief under the 2014 Act

In July, the High Court gave judgment in Clarke v CGI Food Services Ltd.³  This was the first case to come before that court regarding interim relief under the 2014 Act.  In this case, the plaintiff was the group financial controller of the defendant.  He alleged that he had raised concerns about the defendant’s compliance with financial and food safety regulations and from then on, his professional performance was queried and attempts were made to intimidate and pressure him.  He was later the subject of disciplinary action and was ultimately dismissed.

He then commenced Circuit Court proceedings seeking, amongst other things, the continuation of his contract of employment.  The Circuit Court granted him interim relief, ordering the defendant to maintain the plaintiff’s pay and benefits pending the determination of the plaintiff’s related complaint to the Workplace Relations Commission (the “WRC”) under the 2014 Act.  The defendant appealed the interim order.

Before the High Court, the defendant argued that the financial matters raised by the plaintiff were not protected disclosures.  It pointed out that the plaintiff was its financial controller.  Under section 5(5) of the 2014 Act, a disclosure was not protected if it related to “a matter which it is the function of the worker or the worker’s employer to detect, investigate or prosecute”.  However, Humphreys J.  pointed out that the section actually read:

“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.” (emphasis added)

He was satisfied that where a person such as a group financial controller discovered fraud or wrongdoing by their employer, drawing attention to that wrongdoing was a protected disclosure.

Although, it might be explored further at the WRC hearing, Humphreys J was also satisfied that it was not automatically crucial that the plaintiff didn’t make any mention of protected disclosures until after his dismissal.  He said that there was no necessity for an employee to consider the situation in statutory terms until adverse consequences such as dismissal materialised.  Indeed, he said, it could be counterproductive to do so.  This was because the breakdown of an employment relationship was not necessarily a linear process with entirely logical and rational steps on all sides.  There could be vacillation, mixed feelings, false dawns, reconciliations and setbacks; and sometimes it was only later that an employee would begin to figure out what had actually happened.

The defendant also argued that the plaintiff had attempted to retrospectively incorrectly characterise matters as protected disclosures in an attempt to rely on section 11 of the 2014 Act.  This sets out protection for employees from dismissal for having made a protected disclosure.  Humphreys J also rejected this argument, saying that this wasn’t how such situations automatically evolved in practice.  One could make a protected disclosure without invoking the 2014 Act or without using the language of “protected disclosure”.  It was often only after the adverse consequence arrived that one had to “retrospectively” figure out what really happened and analyse it in the statutory language.  There was nothing wrong with that process and it was certainly different from “retrospectively” creating a case from nothing.

Without making a final finding, Humphreys J concluded that overall it was likely that there were substantial grounds for contending that the plaintiff had made protected disclosures and that there was an attempt “to dress up the dismissal as a performance related dismissal”.  He dismissed the appeal and continued the interim relief.

Labour Court had no jurisdiction to assess employer response to protected disclosure

Finally, in the December judgment of Conway v The Department of Agriculture, Food and the Marine,⁴ the plaintiff had made a disclosure to the defendant under the 2014 Act alleging breaches of EU law relating to the appointment of vets by the defendant.  Through oversight, due to dealing with other disclosures from the plaintiff, this disclosure was not processed in accordance with the defendant’s procedures.  Before the Labour Court, the plaintiff unsuccessfully argued that this failure to properly engage with his disclosure amounted to “penalisation” which was prohibited by the 2014 Act. 

In arriving at its decision, the Labour Court first considered the meaning of “penalisation” under the 2014 Act.  Section 3 states that penalisation “means any act or omission that affects a worker to the worker’s detriment”.  It then sets out a non-exhaustive list of examples of various acts included in that definition such as suspension, lay-off or dismissal.  The Labour Court held that the plaintiff had failed to establish the occurrence of any act or omission by the defendant that affected him to his detriment, as a consequence of his protected disclosure. 

In the absence of penalisation, the Labour Court considered that it did not have jurisdiction to assess the plaintiff’s allegations regarding the degree of seriousness or otherwise that the defendant attached to his protected disclosure or the adequacy of the timeframe within which the defendant investigated it. 

On appeal, the High Court agreed with these assessments.  Hyland J pointed out that the 2014 Act does not contain any provisions in respect of the obligations of the employer who has received a protected disclosure.  She said that there were no time limits within which action must be taken; indeed, there were no obligations to take action at all, or to communicate with the person making the disclosure.  While a limited obligation was placed upon public bodies under section 21 to establish and maintain procedures for the making of protected disclosures by its workers; to provide written information in relation to those procedures; and to have regard to guidance issued by the Minister, that was the height of the obligation.⁵  There were no sanctions in the Act for failure to comply with these obligations.

Comment

The 2014 Act is still a relatively new piece of legislation and the jurisprudence of the superior courts on the interpretation and application of the Act continues to evolve.  The last year saw a number of interesting points decided by the courts and this is expected to continue over the coming year.