Complainant

Respondent

Parties

Barry  Fitzgerald

Watermark Coffee Technology Limited

Complainant

Respondent

Representatives

  Self

 David Lawlor Director of Respondent

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-00064695-001

10/07/2024

The Complainant was employed by the Respondent as a Field Service Engineer from the 4th of March 2024 until he was dismissed by the Respondent on the 10th of July 2024.

The Complainant made a Claim for Unfair Dismissal pursuant to Section 8 of the Unfair Dismissals Act 1977 (as amended). He alleged that he was dismissed as a result of having made a protected disclosure pursuant the Protected Disclosures Act 2014 (as amended) hereafter referred to as “the PDA”

The Complainant represented himself. The Respondent was represented by its Director. The matter was fully contested. The Respondent confirmed that the correct title for the Respondent is “Watermark Coffee Technology Limited” and the title of the Respondent was amended accordingly by consent.

The Complainant initiated his claim by way WRC Complaint Form which was received by the WRC on the 10th of July 2024. The following submission Was made on this Complaint Form:

“I made a protected disclosure in relation to my employer not using proper connections in commercial coffee machines, as this is health and safety issue, company expected me to make hot water pipe connections without proper like for like pipes I brought this to my employer’s attention on many occasions. I was always fobbed off. This Adhoc way of doing things was leading to leaks, scalds, burns. I was genuinely concerned for my own Wellbeing and customers, this matter was raised with my line manager Pamela, Neil Flanagan my Understanding is it was relayed to company director. I was called in on 8/7/2024 for a meeting. On arrival I spoke with Neil Flanagan my line manager. I asked what meeting was about is it informal meeting or formal meeting, He replied it was disciplinary and company was letting me go. I informed Neil to speak with operations manager about this and to inform her there are procedures in place to followed before a disciplinary takes place. Neil came back and said Pamela said go home. Around 20 minutes later I had company director at my home standing around me in threatening manner to which there are witnesses. He demanded company van keys and company phone. I can forward on email conversations I had after above incident which led to my dismissal on 10/7/24”

The Respond delivered a written submissions and documentation. The submission, which was prepared by Mr. David Lawlor the Respondent’s Director  who also represented the Respondent contained the following key points:

“In reference to the upcoming adjudication hearing regarding a complaint of unfair dismissal arising from a protected disclosure / whistleblowing by Barry Fitzgerald. I wish to confirm that Mr Fitzgerald made no disclosure / complaint of unsafe work practices formally, informally, written or verbal to the Company or its managers at any time during his employment with the Company. It was only after his dismissal that he indicated that he was raising this issue for submission to the WRC.

If Mr Fitzgerald had an issue with unsafe working practices, he had ample opportunity to raise this issue.

Barry Fitzgerald joined the Company in March 2024; as he was new to the industry without previous experience, he received 2 weeks of one-to-one induction training and several subsequent additional one to one training sessions during his time in employment with Watermark Coffee (March – July 2024). At no point during these sessions did Mr Fitzgerald highlight a potentially dangerous process or situation to the Technical Manager, Neil Flanegan, or his Line Manager, Pamela White, or the Managing Director, David Lawlor.

He was in regular contact with the Technical Manager during his working day to receive guidance and direction. At no point did Mr Fitzgerald highlight a potentially dangerous process or situation to the Technical Manager, Neil Flanegan.

At the end of each assigned job at a customer premises, a resolution is written on a computerised handheld device detailing the nature of the resolution, parts used and any instruction given to the customer. These notes form part of the job review process by the operations management team. There was never a note written by Mr Fitzgerald that any coffee machine was operating in a dangerous fashion or that work carried out was dangerous.

Following Mr Fitzgerald’s dismissal, a complaint was made to the Health and Safety Authority. They carried out an unscheduled visit to the Company premises and issued a report making two recommendations in relation to updating the risk assessments and updating racking assessments. The HSA officer examined a coffee machine while one was being serviced with Neil Flanegan and did not find reason to issue any comment in her report in relation to this activity. It is also worth pointing out that the Company has not had a reportable work-related accident or incident to the HSA in the 18 years that I have been involved in the business.

Mr Fitzgerald’s employment was terminated during his 6-month probationary period because he was deemed unsuitable and a poor fit to our organisation due to persistent insubordination, malfeasance, persistent low work quality and poor judgement.”

Applicable Statutory Provisions:

The Unfair Dismissals Act 1977 (as amended) usually requires that a person making a claim for unfair dismissal must have had not less than 12 mmonths’ service with the respondent employer as per Section 2 (1) which provides [where relevant]: 

2.—(1) Except in so far as any provision of this Act otherwise provides this Act shall not apply in relation to any of the following persons:

(a) an employee … who is dismissed, who, at the date of his dismissal, had less than one year’s continuous service with the employer who dismissed him…

It is not in dispute that the Complainant has less than twelve months’ service with the Respondent when he was dismissed and thus prima facie his claim would be excluded under Section 2 (1) (a). However the effect of Section 11 of the Protected Disclosures Act 2014 (as amended) (hereafter referred to as “the PDA”) is to insert the following as Section 6 subsection 2D of the Unfair Dismissals Act 1977:

“(2D) Sections 3 and 4 do not apply to a case falling within paragraph (ba) of subsection (2) and that paragraph applies to a person who would otherwise be excluded from this Act by any of paragraphs (a) to (c) and (e) to (k) of section 2(1).”;

The paragraph (ba) as inserted by the PDA into Section 6 (2) refers to a situation where the dismissal “results wholly or mainly from… “; “ The employee having made a protected disclosure”, Where this occurs the exclusion in Section 2 (1) (a) does not apply to such a dismissal if so found.

Accordingly, if the Complainant can establish that the dismissal alleged resulted wholly or mainly from his having made a protected disclosure, he becomes entitled to make a claim for Unfair Dismissal and the provisions of that Act apply to his claim notwithstanding that his claim would otherwise be excluded for one year’s continuous service.

The Protected Disclosures Act 2014 as amended  provides (where relevant) at Section 5 as follows:

5.Protected disclosures

(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, 7B, 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,

(c) that a miscarriage of justice has occurred, is occurring or is likely to occur,

(d) that the health or safety of any individual has been, is being or is likely to be endangered,

(e) that the environment has been, is being or is likely to be damaged,

(f) that an unlawful or otherwise improper use of funds or resources of a public body, or of other public money, has occurred, is occurring or is likely to occur,

(g) that an act or omission by or on behalf of a public body is oppressive, discriminatory or grossly negligent or constitutes gross mismanagement,

[(h) that a breach has occurred, is occurring or is likely to occur, or

(i) that information tending to show any matter falling within any of the preceding paragraphs has been, is being or is likely to be concealed or destroyed or an attempt has been, is being or is likely to be made to conceal or destroy such information.]

(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 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.

(5A) A matter concerning interpersonal grievances exclusively affecting a reporting person, namely, grievances about interpersonal conflicts between the reporting person and another worker, or a matter concerning a complaint by a reporting person to, or about, his or her employer which concerns the worker exclusively, shall not be a relevant wrongdoing for the purposes of this Act and may be dealt with through any agreed procedures applicable to such grievances or complaint to which the reporting person has access or such other procedures, provided in accordance with any rule of law or enactment (other than this Act), to which the reporting person has access.

(6) A disclosure of information in respect 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.

Section 6 provides:

6.Disclosure to employer or other responsible person

(1) A disclosure is made in the manner specified in this section if the worker makes it—

(a) to the worker's employer, or

(b) where the worker reasonably believes that the relevant wrongdoing which the disclosure tends to show relates solely or mainly—

(i) to the conduct of a person other than the worker's employer, or

(ii) to something for which a person other than the worker's employer has legal responsibility, to that other person.

(2) A worker who, in accordance with a procedure the use of which by the worker is authorised by the worker's employer, makes a disclosure to a person other than the employer is to be treated for the purposes of this Act as making the disclosure to the employer.

(3) Subject to subsections (5) to (8), for the purposes of enabling the making of reports, an employer with 50 or more employees shall, in accordance with this section and section 6A, establish, maintain and operate internal reporting channels and procedures for the making of such reports and for follow-up (in this Act referred to as “internal reporting channels and procedures”).

(4) The threshold of 50 employees provided for by subsection (3) shall not apply where the employer—

(a) is a public body, or

(b) falls within the scope of the Union acts referred to in Parts I.B and II of the Annex.

(5) Subsection (3) shall not come into effect for employers, other than public bodies and entities who fall within the scope of the Union acts referred to in Parts I.B and II of the Annex, with not less than 50 but not more than 249 employees until 17 December 2023.

(6) (a) Following the carrying out, by or on behalf of the Minister, of an appropriate risk assessment taking into account the activities of the class or classes of employers concerned and the ensuing level of risk for, in particular, the environment and public health, the Minister may, by order, provide that subsection (3) shall apply to such class or classes of employers with less than 50 employees as the Minister may specify in such order.

(b) Before making an order under this subsection, the Minister shall publish or cause to be published on a website maintained by or on behalf of the Minister and which is accessible to the public—

(i) a copy of the proposed order,

(ii) a copy of the risk assessment referred to in paragraph (a), and (iii) a notice—

(I) stating that the Minister intends to make the proposed order,

(II) stating where, on the website concerned, the documents referred to in subparagraphs (i) and (ii) can be accessed,

(III) inviting the making, during the period specified by the Minister for this purpose, of submissions to the Minister in relation to the proposed order, and

(IV) stating the date of publication of the notice, and having considered any submissions made in response to the invitation referred to in clause (III) may make the order, with or without amendment.

(c) Submissions made under paragraph (b)(iii)(III) shall be published or caused to be published by the Minister on a website maintained by or on behalf of the Minister and which is accessible to the public.

(d) The Minister shall notify the Commission of the European Union of the making, amendment or revocation of an order under this subsection, and the notification shall include the reasons for making, amending or revoking the order and the criteria used in carrying out the risk assessment referred to in paragraph (a).

(7) (a) The Minister may by regulations provide that the internal reporting channels and procedures required to be established, maintained and operated by employers to whom subsection (3) applies shall also enable the making of reports by other persons or such class or classes of other persons, as the Minister may prescribe, referred to in points (b), (c) and (d) of Article 4.1 and Article 4.2 of the Directive, who are in contact with the entity concerned in the context of their work-related activities.

(b) Where regulations are made under paragraph (a), this section shall apply, with any necessary modifications, to such other persons or class or classes of such other persons referred to in paragraph (a) as may be so prescribed, as if a reference in this section to employees were a reference to such other persons or class or classes of such other persons so prescribed.

(8) The Minister may, for the purpose of the calculation of the number of employees an employer has for the purposes of the application of this section, by regulation, provide for the methods to be applied by such class or classes of employers and in respect of such class or classes of employees as may be prescribed.

(9) Internal reporting channels and procedures may be—

(a) operated internally by a person or department designated for that purpose by an employer, or

(b) provided externally by a third party authorised in that behalf by an employer.

(10) (a) Subject to paragraph (b), employers with less than 250 employees (including employers in respect of whom an order has been made under subsection (6)) may share resources as regards the receipt of reports under this section and any investigation to be carried out as part of the process of follow-up.

(b) This subsection shall apply without prejudice to the obligations imposed on an employer to—

(i) maintain confidentiality in accordance with section 16,

(ii) diligently follow-up in accordance with section 6A(1)(d), and (iii) provide feedback in accordance with section 6A(1)(e) and (f).

(11)

Subject to subsection (12), section 6A shall apply to a report made to an employer.

(12) Where—

(a) a worker, who is or was an employee of a public body, makes a disclosure of relevant information to the public body, in the manner specified in this section, before the commencement of section 8 of the Protected Disclosures (Amendment) Act 2022, and

(b) the public body—

(i) has established procedures under section 21 (being that section as it stood before the commencement of section 28 of the Protected Disclosures (Amendment) Act 2022), and

(ii) has not completed its consideration of such disclosure in accordance with those procedures before the commencement of the said section 8,

then, where the worker so requests in writing, the public body shall, no later than 3 months after the date of such request, provide information to the worker on any actions taken or to be taken by that public body in relation to the relevant information concerned.

Judicial Interpretation

As to what is a protected disclosure, the leading authority on the issue is the Supreme Court decision in Baranya v. Rosderra Meats [2021] IESC 77 which also concerned a disclosure of Health and Safety concerns raised by the employee. in relation to complaints of wrongdoing as contemplated by the Protected Disclosures Act, Hogan J made the following statement at paragraph 28 of his judgement:

“It is perfectly clear from these words that the complaint does not have to relate to the health or safety of other employees or third parties: a complaint made by an employee that his or her own personal health or safety is endangered by workplace practices is clearly within the remit of the sub-section. Nor does the conduct in question necessarily have to amount to a breach of any legal obligation (although it would generally probably do so): it is sufficient that the employee complains that his or her health or safety has been or is being or is likely to be endangered by reason of workplace practices, as this amounts to an allegation of “wrongdoing” on the part of the employer in the extended (and slightly artificial) sense in which that term has been used by s. 5(2) and s. 5(3) of the 2014 Act. It follows that a complaint made by an employee that his or her own personal health was being affected by being required to work in a particular manner or in respect of a particular task can, in

principle, amount to a protected disclosure.”

At Paragraph 43 of his judgement, Hogan J. made the following statement in relation to the essence of what constitutes a protected disclosure

“In essence, therefore, the issue for the Labour Court was first to ask what precisely did Mr Baranya say and, second, to inquire whether, having regard to the general context of the words actually uttered, they amounted to an allegation of “ in the sense of both s 5 2 and s 5 3 )( of the 2014 Act, i e 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 to adopt the words of Sales LJ regarding a parallel provision in the corresponding UK legislation, the disclosure must have sufficient factual content and specificity for this purpose see Kilraine v Wandsworth LBC 2018 ICR 1850 at 1861 even if it does merely by necessary implication”

The Respondent cited the Labour Court decision in Connemara Marble Industries Limited v Murphy PDD206 (October 2020 – prior to Baranya) where the following statement was made:

“A disclosure of relevant information under the 2014 Act must relate to the provision of specific facts rather than an allegation, or expression of opinion or state of mind of the worker. The information provided must be of facts which in the reasonable belief of the worker making the disclosure tends to show wrongdoing.”

In Barrett v. Commissioner of An Garda Síochána and Minister for Justice [2023] E.L.R 165,  Ní Raifeartaigh J. (speaking for the Court of Appeal) at Paragraph 115 noted that:

“Section s.5(8) of the 2014 Act provides that 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. Thus, there is a statutory presumption in favour of an applicant on this particular issue, although of course it is a rebuttable presumption. The use of the words “until the contrary is proved” suggests that the burden on a respondent who seeks to rebut the presumption is on the balance of probabilities.”

Evidence in the Present Case

The Complainant gave evidence on Affirmation.

He alleged that he complained about multiple breaches of health and safety regulations such that he was exposed to unnecessary risk of injury so too, potentially, were clients whose coffee-making equipment was installed and/or serviced by the Respondent. He cited a number of situations where he encountered health and safety issues on various jobs which he did for the Respondent’s clients in March, April May and June of 2024.  

The Complainant said that he complained to management on each occasion where an accident, near-miss or a hazardous situation had arisen. He also complained many times about a lack of training and a lack of suitable personal protective equipment. He said that each time he complained he was “fobbed off”.

The Complainant said that in addition to the foregoing internal complaints he also contacted the Health and Safety Authority (“the HSA”) and made a complaint to that Authority regarding breaches of Health and Safety legislation by the Respondent. He made this complaint on the telephone some time in June 2024.

At the completion of evidence on the first day of the hearing, I ascertained from the Respondent that an inspection of its premises had been carried out by an Inspector with the HSA on the 12th of July and a report from the HSA Inspector was circulated. This report noted that

“I refer to my Inspection of the above premises on the 12th July 2024. The following Safety, Health and Welfare matters requiring attention were observed and discussed with yourself. These are listed below and if not already attended to, should receive your immediate attention.

1.       Review risk assessments for place of work.

2.       Racking inspections are recommended annually. “

I informed the parties that I would write to the HSA to secure such documentation as existed touching or concerning a report to the Authority on the dates alleged by the Complainant together with any further documentation and that I would circulate any such documentation to the parties before the hearing recommenced. The parties were in agreement with this proposal.

Following an email enquiry to the HSA the 18th of December 2024, the following information from the HSA, Data Protection, FOI and Protected Disclosure Unit was received by email dated the 19th of December 2024:

“I can confirm that the inspection carried out in July at this place of work, was a proactive inspection, it did not arise from a complaint referral but was a result of a normal routine inspection. Therefore there is no complaint linked to this inspection nor can I find a previous complaint related to this place of work prior to July 2024 to Jan 2024.

Under data protection legislation we do not disclose if an identifiable person has made a complaint or provide a copy of a complaint. However I can say that the inspection carried out on Watermark in July was just routine and that there is no record of a complaint prior to this inspection recorded against Watermark on our database.”

The email enquiry to the HSA of 18th of December 2024 and the reply received on the 19th of December 2024 were forwarded to the parties on the 20th of December 2024 and the matter was relisted for further hearing on the 11th of February 2025.  Neither party made any further submission in relation to this issue prior to that date. 

At the resumed hearing the Complainant responded to the email from the HSA to the effect that: (1) He agreed with the terms of the query raised with the HSA and (2) He said that the HSA had no record because its Data Protection Rules prevented any details being released. He repeated that he did make a telephone report to the HSA.

Noting that the information from the HSA that “there is no record of a complaint prior to this inspection recorded against Watermark on our database”, the inspection referred to being the one on the 12th of July 2024 which was “just routine” and that this information was not challenged by the Complainant, my finding in relation to this issue is that there is no evidence to support the Complainant’s contention that he made a report to the HSA.

The Respondent denied that any complaint regarding Health and Safety had ever been made to it by the Complainant either orally or in writing. Ms. Pamela White, the Respondent’s Operations Manager and Mr. Neil Flanagan the Respondent’s Technical Manager and the Respondent’s Director Mr. Lawlor all denied on affirmation that the Complainant had ever made the alleged or any complaints about his personal safety or the safety of any other person. They denied that he had ever complained about lack of training or lack of PPE.

The Complainant placed very specific reliance on the fact, as he alleged, that Mr. Chris Nolan was his acting supervisor or line manager when Mr. Flanagan was unavailable. He alleged that this fact was corroborated by the volume of text messages between himself and Mr. Nolan which he alleged, established that he reported to Mr. Nolan. The Respondent In its submissions denied that Mr. Nolan was ever an acting supervisor and contended that, whether he was acting as a supervisor or not, Mr. Nolan never passed on to management any complaints regarding health and safety reported to him by the Complainant.

Mr. Nolan gave evidence on affirmation. He denied that he was acting as a supervisor or that the Complainant ever reported to him in any sense. He said that they would often discuss work issues but that the Complainant did not report to him, and he was not the Complainant’s supervisor. He did tell the Complainant that he could call him if he (the Complainant) needed any help. He expressed the view that the multiple calls recorded on the Complainant’s mobile phone between March and June 2024 reflected the fact that he called the Complainant to see how he was getting on. He did not remember ever saying that he himself needed or did not have PPE and if he needed gloves, he had gloves in his van. Mr. Nolan could not recall any time when the Complainant complained to him regarding health and safety. 

The Complainant’s wife, Ms. Olivia Fitzgerald also gave evidence on affirmation. She was not a party to the complaints made by the Complainant. She gave evidence regarding the manner in which the Respondent repossessed the Complainant’s company vehicle on the 9th of July 2024 which she said was intimidating. She also said that she was aware of messages which the Complainant had written to the Respondent which she alleged, the Respondent had since deleted. 

The Complainant insisted that he did send emails and texts to the Respondent which it was contended constituted written complaints or disclosures. The Complainant was unable to produce copies of any of these emails or texts. Both the Complainant and his wife in their respective evidence and submissions suggested that emails or texts did exist but had been deleted or were otherwise being withheld by the Respondent. I investigated these allegations with the parties and some time was taken to enable the Respondent to search its records including emails and WhatsApp messages. It was agreed that the WhatsApp messages between the Complainant and Ms. Pamela White revealed nothing of relevance. As regards messages between the Complainant and Mr. Neil Flanagan these messages appeared to have been deleted but the Complainant and his wife both said that these messages had been there “up to a month ago”. Ms. White said that this arose because the individual who replaced the Complainant got a new number, and the older messages were deleted as a result. The Respondent was not in possession of any WhatsApp messages between the Complainant and Mr. Christopher Nolan as this was not a company WhatsApp.

The Complainant made further submissions and gave further evidence following the above exercise. He identified a message which he sent to Mr. Flanagan on the 26th of June 2024 where he said, “Neil that nut won’t fit snug over flow meter, Any ideas?”. As regards emails the Complainant said that he made complaints regarding health and safety on the Respondent’s email system. However, he confirmed that he never specifically said that he was complaining about Health and Safety standards. On one occasion he recalled sending an email stating “I’ve no PPE”. The Complainant did not retain his own copies of any of the emails or messages sent. He said that he sought these by way of a Data Access Request but as at the day of hearing, he had not received a response to that request. 

The review of the Respondent’s emails generated emails from Ms. White to the Complainant dated the 16th April 2024, 28th May 2024, 24th of June 2024 and 26th of June 2024 which she contended related to performance issues and arrangements for the provision of further training. The Complainant agreed that he did receive these emails, but he disputed that they related to performance issues.

The text of the emails was as follows:

16th April 2024:

“Hi Barry

Can you let me know what machines or jobs are giving you most trouble. There is a lot of call backs after you attend sites, and we need to get these call-backs to reduce as much as possible.

You can email later as I will bring you in for more training on machines that you don’t feel confident about?”

28th May 2024

“Barry, please go back here ASAP, this is two [Customer name] callbacks for today alone.

We will need to sit down and talk about callbacks tomorrow with Neil at 8:30 am”

24th of June 2024

“Hi barry,

Please explain this – The joints have not been sealed correctly with PTFE, and there is also a screw missing from the flowmeter.

You must ensure you complete the job fully and correctly.

An engineer now has to go back to complete this and the call can’t be charged for.”

26th of June 2024

Ms. White to Complainant

“Hi Barry

We are going to bring you in for training next Tuesday as we feel it is necessary to refresh you about water boilers/grinder adjustments. Also we have installs that are coming up so we need you to be 100% on grind calibrations and doses, I am sure your familiar enough with setting grinds at this stage as David the director of the company will be there with you doing that.

We will carry out a stock take on your van as there seems to be an issue with parts that we have noticed”

Complainant to Ms. White

“Hi pamela, that’s no problem, you can never have enough training you learn something new everyday. Will I come at normal time for 8am cheers”.

The Complainant also referred to a message sent to Mr. Lawlor on the 10th of July 2024 where he accused Mr. Lawlor of telling lies. The date of this message was unclear as the Complainant had a screen shot of if it without clarity as to its date. The best information that could be obtained following a discussion with the parties is that it was probably sent on the 10th of July 2024, after the Complainant was dismissed.

Analysis of Available Evidence

The Complainant clarified that he did not in any of his communications use the words or phrase “Health and Safety” as such but rather he contends that the complaints he made clearly indicated that he was unhappy with the work practices of the Respondent and further that he was seeking training and that he was not supplied with proper Personal Protective Equipment. It can be inferred from paragraph 28 of the judgement of Hogan J. in Baranya (quoted above) that the failure to use the phrase or words “Health and Safety” is not necessarily fatal to the communication being a protected disclosure since as Hogan J. put it: “a complaint made by an employee that his or her own personal health was being affected by being required to work in a particular manner or in respect of a particular task can, in principle, amount to a protected disclosure”                 (Emphasis added)

Although communications of the sort alleged by the Complainant are “in principle” capable of being deemed protected disclosures, regard must also be had to paragraph 43 of the judgement of Hogan J. (quoted above).

As regards verbal complaints the Complainant said that he complained many times about safety issues but was “fobbed off”. Ms. White, Mr. Flanagan and Mr. Lawlor all denied outright having ever received complaints relating to safety from the Complainant and Mr. Nolan could not recall any time when the Complainant complained to him regarding health and safety. As for written communications by the Complainant to the employer, the Respondent contended that these could not reasonably be considered to demonstrate a reasonable belief on his part of wrongdoing by the Respondent and emails other than the two communications put forward by the Complainant were relied on to suggest that the general theme of communications with the Complainant  related to performance management and not in any way to safety concerns.

Regarding the first limb of the formulation set out in that passage from the Judgement of Hogan J. as to what was actually said by the Complainant there is a significant difficulty in identifying with any reliable degree of specificity what communications or utterances the Complainant actually made. Aside from this issue and moving to the balance of the formulation in the quoted passage from Baranya, I find that the communications that were made (allegedly) verbally and in writing, do not contain sufficient factual content to show - whether expressly or by necessary implication - one or more relevant wrongdoings.

My overall conclusion is that even if the Complainant’s communications such as they were, are capable of attracting the  presumption provided for Section 5 (8), that they are protected disclosures, any such presumption, on the balance of probability, has been rebutted.

Arising from the finding that the Protected Disclosures Act has no application to the present case, it follows that the Complainant has insufficient service to maintain a claim for unfair dismissals under the Unfair Dismissals Acts. Accordingly the Complainant was not unfairly dismissed.

CA-00064695-001 – The Complainant was not unfairly dismissed

Unfair Dismissals Act 1977 - Section 2 (1) – Section 6 (2) (Bb) – Section 6 2D - Protected Disclosures Act 2014 – Sections 5, 6, -  Protected Disclosure - Baranya v. Rosderra Meats[2021] IESC 77 - Barrett v. Commissioner of An Garda Síochána and Minister for Justice [2023] E.L.R 165 - Connemara Marble Industries Limited v Murphy PDD206