ADJUDICATION OFFICER DECISION/RECOMMENDATION
Adjudication Reference: ADJ-00008429
Parties:
| Complainant | Respondent |
Anonymised Parties | An employee | An agency |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00011415-001 | 18/05/2017 |
Date of Adjudication Hearing: 30/11/2017
Workplace Relations Commission Adjudication Officer: Jim Dolan
Procedure:
In accordance with Section 8 of the Unfair Dismissals Acts, 1977 - 2015, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
Background:
The complainant commenced a fixed term contract of employment on 18th April 2016 that expired on 31st January 2017. The contract was not renewed or extended. The complainant alleges that he was not issued with a new contract due to his having made a protected disclosure. |
Summary of Respondent’s Case:
The burden of proof lies with the Complainant to show that there was a protected disclosure under the 2014 Act and that the dismissal is connected to the making of a protected disclosure. It is the respondent’s position that (a) the complainant has not furnished any details whatsoever of his alleged protected disclosure; (b) the disclosure of an alleged protected disclosure to the respondent and (c) that the reason the complainant’s contract of employment was not renewed was the making of a protected disclosure (all of which are denied by the respondent). The complainant was employed on a fixed-term contract from 18th April 2016 to the 31st January 2017. The complainant’s employment terminated on 31st January 2017 on expiry of his fixed-term contract. It is the respondent’s understanding that an intimate encounter took place between the complainant and his manager at a party at the home of the manager in May 2016. The respondent was never made aware of this incident until after the expiry of the complainant’s fixed term contract in January 2017. The complainant has alleged in his complaint form that that he complained to two client employees – no details of these complaints has been furnished by the complainant. No formal complaint was made to the respondent in respect of the incident. The complainant met with the respondent on 16th February 2017. The complainant gave an account of the incident in May 2106 and subsequent inappropriate behaviour from the store manager. During this meeting, it was explained to the complainant that there was no grievance raised with the respondent by him, his union or at store level. The complainant confirmed that he did not want the matter investigated. It is the respondent’s submission that · The complainant’s employment was terminated by reason of the expiry of his fixed term contract. · The alleged discussions between the complainant and two client employees in December 2016 have been misrepresented by the complainant as a protected disclosure under the 2014 Act – this is wholly refuted. · Section 5(3)(d) of the 2014 Act provides for protected disclosures of information which revealed that the health and safety of an employee was being endangered. The 2014 Act specifically excludes any obligation arising under a worker’s contract of employment. The complainant submits that the above discussions were protected disclosures under section 5(3)(d) of the 2014 Act – this is simply not the case. The complainant has not put forward any evidence whatsoever that his health and safety was endangered. · The complainant specifically advised the respondent that he did not have any other issues and just needed “a couple of days to rest” when it approached him about his absence from work in December 2016. · The complainant never raised any issue or grievance with the respondent during his employment. Furthermore, the complainant specifically advised the respondent that he did not have any other issues and just needed “a couple of days to rest”, when it approached him about his absence in December 2016. · In addition, the respondent was never made aware of any issues or concerns with the complainant at store level or by the union. · It is clear from the above that the complainant did not make a protected disclosure under the 2014 Act which was connected with his dismissal, or at all. For the reasons set out above it is the respondent’s position that the complainant’s claim is disputed in its entirety and should be dismissed. |
Summary of Complainant’s Case:
The complainant commenced employment with the respondent and was issued with a fixed term contract of employment commencing on 21st April 2016 and ending on 31st January 2017. The respondent is a recruitment agency who supply personnel for a range of clients. It is alleged that the complainant only recalls seeing this fixed term contract at the end of the employment and that he understood himself to be a permanent employee. On 1st May 2016 the complainant went to a house party at his manager’s home where he had consensual sex with her. After this the relationship between the complainant and the manager became very awkward. The complainant developed mental health issues arising from the foregoing and was wracked with guilt because he had a girlfriend. The complainant’s first visit to his GP was on 12th December 2016, he was issued with a medical certificate. After that he was prescribed sleeping pills, antidepressants and Valium, he also produced a report from his GP and this was made available to the hearing. The complainant attended the respondent’s company doctor who issued him with a medical certificate for one month. It is alleged that the following protected disclosures were made. The complainant complained about his health and safety and asked to be transferred to another store on various occasions: - I. From October 2016, the complainant asked his manager for a transfer. He explained his mental health was affected. The manager encouraged him not to pursue a transfer. II. On 17th December 2016, the complainant went to work and told the new assistant manager that his mental health was affected and why and that he wanted to be transferred. She informed him that he could leave work because he was upset and suggested that he call the Regional Manager. III. On the same date the complainant called the Regional Manager and told him what had happened with the store manager and went on to inform him that his mental health was affected and that he wanted a transfer to another store. IV. On 21st December 2016, the complainant made a call to his union rep and told him that his mental health was affected and he needed a transfer. The union rep informed the complainant that he would speak to the MD of the respondent company. On 16th January 2017, the complainant was contacted and informed he would have to see the company doctor on 23rd January 2017. On 17th January 2017, the complainant attended his own GP who issued a medical certificate from 17th January 2017 to the 7th February 2017 at which time he should return for a review.
On 20th January 2017, the complainant received a letter informing him that his fixed term contract would not be renewed.
In an email dated 24th January 2017 from the respondent the complainant is described as a performer and would they have any work for him? On 16th February 2017, the complainant had a meeting with the respondent HR Manager. The HR Manager wrote on a piece of paper that she would provide the complainant with another job on equal terms if he did not take legal action. The respondent MD later said that he would not honour this. The complainant was unemployed for one month and is currently working in the building trade making €500 gross per week. The complainant’s legal representative maintains that the disclosure made was to the complainant’s employer and the client company and this is what led to the non-renewal of the contract. |
Findings and Conclusions:
The essence of this case is whether the complainant made a protected disclosure within the meaning of the Protected Disclosures Act 2014. If it is accepted that a protected disclosure was made and the complainant was penalised under the Act (by non-renewal of a fixed term contract in this case) there is no longer a requirement to have one years’ service under the Unfair Dismissals Act,1977 -2015. The question then relates to the fact of dismissal – is the non-renewal of a fixed-term contract on expiry deemed to be a dismissal? The Protected Disclosures Act 2014 is “An Act to make provision for and in connection with the protection of persons from the taking of action against them in respect of the making of certain disclosures in the public interest and for connected purposes”. Section 5 of the Protected Disclosures Act 2014 defines Protected Disclosures as follows: 5.(1) For the purposes of this Act “protected disclosure” means, subject to subsection (6) and sections17 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 purpose 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 – (d) that the health and safety of any individual has been, is being or is likely to be endangered (4) For the purposes of subsection (3) it is immaterial whether a relevant wrongdoing occurred, occurs or would occur in the State or elsewhere and whether the law applying to it is that of the State or that of any other country or territory. (5) A matter is not a relevant wrongdoing if it is a matter which 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. (6) A disclosure of information in respect of which of which a claim to legal professional privilege could be maintained in legal proceedings is not a protected disclosure if it is made by a person to whom the information was disclosed in the course of obtaining legal advice. (7) The motivation for making a disclosure is irrelevant to whether or not it is a protected disclosure. (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. In this instant case the complainant alleges that he spoke to two employees of the client, one being the regional manager and the other being the union representative during the month of December 2016. The complainant informed the manager that he wanted a transfer to another branch. When the manager offered to meet with the complainant in the days ahead the offer was turned down by the complainant. In evidence at the hearing there was no mention of any protected disclosure nor was there any complaint that the complainant’s health and safety was at risk. The client employee who was also the union representative did not attend the hearing. In evidence, we heard that the respondent only became aware of the incident after the expiry of the fixed-term contract. At the meeting on 16th February 2017 the complainant gave an account of the incident and subsequent inappropriate behaviour from the store manager. It was explained to the complainant that there was no grievance ever raised with the respondent by the union or the complainant at store level. The complainant confirmed that he did not want the matter to be investigated. Statutory Instrument 464 /2015 – Industrial Relations Act 1990 (Code of Practice on Protected Disclosures Act 2014) (Declaration) Order 2015 states: What is the difference between a grievance and a Protected Disclosure? 30. A grievance is a matter specific to the worker i.e. that worker’s employment position around his/her duties, terms and conditions of employment, working procedures or working conditions. A grievance should be processed under the organisation’s Grievance Procedure. A protected disclosure is where a worker has information about a relevant wrongdoing. I am unable to find that the complainant made a protected disclosure within the meaning of this Act as claimed.
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Decision:
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
Having considered the written and oral submissions of the parties and all the evidence adduced at the hearing of this complaint, I find that the complainant did not make a protected disclosure within the meaning of the Act and the complaint fails. Consequently, as the complainant did not have the requisite service to bring a complaint under the Unfair Dismissals Acts 1977 – 2015, I do not have jurisdiction under that Act. |
Dated: 09 April 2018
Workplace Relations Commission Adjudication Officer: Jim Dolan
Key Words:
Protected Disclosure, unfair dismissal, non-renewal of fixed-term contract. |