Grievance or Protected Disclosure?

Background

The case of Louis O'Neill v City Break Apartments Limited City Break Apartments (ADJ-00042764) examines the circumstances under which an Adjudication Officer will construe a concern as constituting a protected disclosure.

Mr O’Neill (the Complainant) brought a number of complaints against City Break Apartments Limited City Break Apartments Limited (the Respondents) to the Workplace Relations Commission (WRC) alleging that he had been discriminated against due to his disability and that he was forced to resign on account of the failure of his employer, in part, to provide him with a reasonable accommodation. The act of Mr O'Neill in raising his concerns about workplace conditions and being 'replaced' by another employee was presented as having constituted a protected disclosure..

Legislation and Case Law

For the purposes of this article, the complaint was primarily grounded in Schedule 2 of the Protected Disclosures Act, 2014.

The Protected Disclosures Act 2014 (as amended) provides that 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. The Protected Disclosures Act 2014 (as amended) provides at section 5 that: “

(1) 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 a work related context.

(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,

(8) In proceedings involving an issue as to whether a disclosure is a protected disclosure it shall be presumed, until the contrary is proved, that it is.”

Section 3 of the 2014 act defines “penalisation" as:

“any direct or indirect act or omission which occurs in a work-related context, is prompted by the making of a report and causes or may cause unjustified detriment to a worker, and, in particular, includes— (a) suspension, lay-off or dismissal,

(b) demotion, loss of opportunity for promotion or withholding of 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) coercion, intimidation, harassment or ostracism,

(f) discrimination, disadvantage or unfair treatment,

(g) injury, damage or loss,

(h) threat of reprisal,

(i) withholding of training, 

(j) a negative performance assessment or employment reference,

(k) failure to convert a temporary employment contract into a permanent one, where the worker had a legitimate expectation that he or she would be offered permanent employment, 

(l) failure to renew or early termination of a temporary employment contract,

(m) harm, including to the worker’s reputation, particularly in social media, or financial loss, including loss of business and loss of income,

(n) blacklisting on the basis of a sector or industry-wide informal or formal agreement, which may entail that the person will not, in the future, find employment in the sector or industry,

(o) early termination or cancellation of a contract for goods or services,

(p) cancellation of a licence or permit, and

(q) psychiatric or medical referrals;”

In Crawley v Dundalk Institute of Technology (ADJ 00026170, 23 February 2022), the Adjudication Officer held that:

“the key question arising then is what information is disclosed in the complainant’s email of December 2018 that carries a reasonable inference of wrongdoing that is relevant and can be said to fall in any way into the order of relevant wrongdoings in the Act.” 

In the matter of Baranya v Rosderra Meats Group Limited [2021] IESC 77, the Supreme Court held that, per Hogan J., an Adjudicating body must examine,

“…did those words expressly or by necessary implication amount to an allegation tending to show that workplace health and safety was or would be endangered, even if that complaint was personal to him. The allegation must, of course, contain such information – however basic, pithy or concise – which, to use the language of S.5(2) of the 2014 Act, “tends to show one or more relevant wrongdoings” on the part of the employer”.

In the case of O’Neill v Toni and Guy Blackrock Limited [2010] ELR 21, the Labour Court considered the requirement for a causal connection in claims of penalisation in respect of claims under the Safety, Health and Welfare at Work Act, 2005, prior to the enactment of the Protected Disclosures Act 2014.

When considering causal connection under the Protected Disclosures Act 2014 in Anna Monaghan v Aidan & Henrietta McGrath Partnership [2017] 28 ELR 8), the Labour Court held that the provisions concerning penalisation were “broadly similar” to those in the 2005 Act. The Labour Court stated that:

“It is clear from the language of section 27 of the 2005 Act that in order to make out a complaint of penalisation it is necessary for an Appellant to establish that the detriment of which he or she complains was imposed 21 “for” having committed one of the acts protected by section 27 (3) of the 2005 Act. Thus the detriment giving rise to the complaint must have occurred because of, or in retaliation for, the Appellant 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 Appellant having committed the protected act he or she would not have suffered the detriment. This involves a consideration of the motive or the reasons which influenced the decision maker in imposing the impugned detriment.”

Following the enactment of the Protected Disclosures (Amendment) Act 2022 since the above decision, the burden of proving that the dismissal did not arise from the making of a protected disclosure by the Complainant rests on the Respondent. Section 12 of the amended act provides that:

“7(c) In any proceedings by an employee under the Workplace Relations Act 2015 in respect of an alleged contravention of subsection (1), the penalisation shall be deemed, for the purposes of this section, to have been as a result of the employee having made a protected disclosure, unless the employer proves that the act or omission concerned was based on duly justified grounds.” 

In Liam McMullan v Inspire Wellbeing (ADJ 00032530, 7 February 2023) the Adjudicating Officer held that:

“At the time the complaint was lodged, the burden of proof was the “but for” test: whether the protected disclosure was an operating cause in the act of detriment, as opposed to be the main cause or the whole cause. This burden of proof was significantly altered by the Whistleblowing Directive (Directive 2019/1937) and the transposing Protected Disclosures (Amendment) Act, so that it is presumed that the detriment was due to the protected disclosure.  In line with the Directive, this reverse burden of proof applies to all aspects of detriment, including deeming that a person has not passed probation or that their employment should end.”

The Complainant was on sick leave for a prolonged period, and upon his return to work, discovered a number of emails between Officers the Company. The emails set out certain plans to replace the Complainant in his existing roles, and a strategy as to how that could be achieved, potential concerns which may have led to the dismissal of the Complainant and commentary on the Complainant’s mental and physical health.

The Complainant postulated that his having brought this communication to the attention of his employer constituted a protected disclosure.

The Respondent noted that, while the concerns of the Complainant were genuine, given the increase in volume of business, his being on long term sick leave, as well as a number of other strategic considerations, an amendment to the organisational structure was required, in any event.

Ultimately, the Adjudication Officer decided that the issues complained of, were personal to the Complainant, related solely to his terms and conditions of employment, amounting more to a grievance than a protected disclosure. 

The Adjudication Officer commented:

“I cannot see any basis on which the Complainant could have formed a reasonable belief that the matters raised in the above email could conform to the definitions of a protected disclosure in the 2014 Act. The Complainant is raising issues about himself and of concern to himself. I find the contents of the email do not meet the test of information or relevant information of a wrongdoing for the purposes of section 5 of the 2014 Act. The contents of the email relate exclusively to the Complainant and to his clearly manifest discontent around his duties, working procedures and broadly speaking his terms and conditions of employment together with a generalised allegation that he has been “getting treated in a less favourable way.” I am satisfied the matters outlined in the email bear all the hallmarks of an individual grievance and do not constitute a protected disclosure.”

Takeaway

The takeaway for employees considering bringing a complaint under 2014 Act is to consider what ‘revelation’ constituted a form of whistleblowing and in what way were they subsequently penalised.

For employers, it will be necessary to demonstrate that any complaints or concerns are properly addressed and that an employee is not reprimanded for having raised such apprehensions.

Further information

This article was prepared by Barry Crushell for informational purposes only. For further advice, please email contact@crushell.ie or contact the offices of Crushell & Co Solicitors.