Complainant

Respondent

Anonymised Parties

A Finance Manager

A Charity

Representatives

  Self

Una Clifford BL instructed by John Carroll, Crowley Millar Solicitors

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-00063238-001

01/05/2024

The Complainant was employed by the Respondent as Finance Manager from the 1st of September 2023 until he was dismissed by the Respondent on the 2nd of November 2023.

The Complainant made a Claim for Unfair Dismissal pursuant to Section 8 of the Unfair Dismissals Act 1977 (as amended) (“the UDA”). He alleged that he was dismissed 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 Ms. Una Clifford B.L instructed by Crowley Millar Solicitors.

The matter was fully contested.

Complainant’s Submissions

The Complainant initiated his claim by way WRC Complaint Form which was received by the WRC on the 1st of May 2024. The following submission was made on this Complaint Form:

I am seeking adjudication under the Protective Disclosures Act 2014 as amended by the Protective Disclosures (Amendment) Act 2022, claiming detrimental treatment and penalisation under the Unfair Dismissals Act 1977 revised, seeking the increased five years compensation.

Adjudication under Statutory Instrument 146-2000, my constitutional right to an appeal, procedural justice in achieving fair and natural justice. The principles of natural justice fair procedures allows an opportunity to avail of representation, a right to a fair and impartial determination of the issues under investigation, my response, representations made by me or on my behalf and all other appropriate evidence factors and circumstances, my dismissal being procedurally unfair. I was denied fair procedures I am also seeking compensation for a breach of fair procedures to be paid from date of dismissal to the date of a full hearing.

The Complainant delivered further and more detailed and comprehensive submissions prior to the initial day of hearing. Those submissions are summarised below and are limited to the communications and evidence relating to the period up to and including the Complainant’s dismissal. 

Disclosure

I made a disclosure by email 27th October 2023, to the then CEO on the reasonable belief that the accounting records were not transparent, would not pass audit, due diligence was necessary, accounting records (prepayments, accruals, deferred income) could not be stood over, a reasonable belief considering the history, there was a failure to keep books and records an offence under the Companies Act 2014, Section 282, a category three criminal offence (the wrongdoing), an oral disclosure was not possible as I was dismissed during sick leave 2nd November 2023, other disclosures up to the date of my email 27th October 2023, not knowing they were protective disclosures

My disclosure and previous disclosures contained information of relevant wrongdoing and were not mere allegations.

I named and identified a practice – ‘in order to pass audit by end of January 2024’.  Confirmed by [the CEO] – ‘anomalies’ and ‘outstanding matters’ – left out by respondent.

[Text of emails provided – discussed in more detail in Findings Section below]

[References to Case Law and quotations provided]

Burden of Proof

In proceedings involving an issue as to whether a disclosure is a protected disclosure it is presumed that it is until the contrary is proved, (Protected Disclosures Act 2014, s 5(8)).

The complainant enjoys this presumption on the basis that it was considered critical for promoting a necessary change in workplace culture. The aim of its inclusion was to ensure that workers are not inhibited significantly from disclosing information on account of having to shoulder the burden of proof.

The respondent has not shown to the contrary.

The Wrongdoing,

Section 5. (1), Section 5 (2) (a) (b), Section 5 (3) (a) (b) (f) of the Protective Disclosures Act 2014 as amended.

Wrongdoing – The Failure to comply with a legal obligation of the Companies Act 2014 and the Misuse of Public funds.

A reasonable belief that there was a failure to maintain proper accounting records, Section 281 Companies Act 2014, Section 47 Charities Act 2009. The maintenance of records is required by law for several reasons, to manage a business responsibly and to monitor the assets, liabilities, donations, rent and expenses promptly.

Detriment

I made a disclosure of wrongdoing on a Friday (27th October 2023), a retaliation was made by [the CEO] 2nd November 2023 where I was penalised for bringing to his attention wrongdoing, matters that came to me in the workplace in which he knew. He sent me a letter and email dated 2nd November 2023 informing me that my post was terminated

My Contract of Employment

I was a deemed employee from June 27th, 2023, to 31st August 2023 an agency appointee and an employee from 1st September 2023 to 1st November 2023, a deemed employee situation is when an employee works for an employer through another agency or body, as defined by the Employment Agency Act 1971. During my deemed employment June 27th 2023 – 31st August 2023, a period of 66 days, I was not asked to provide Garda vetting.

The job being opening advertised, I was coached by [Mr. A] on how to prepare myself, he gave me the interview questions to aid my chances, not sure if he also did the same with the other candidates, and if he did, there being no favouritism. If I had not performed as alleged, I would not have been successful in the interview, nor would [Mr. A] have coached encouragingly.

Garda vetting, I provided [a] Senior Manager, [with] evidence of a Garda vetting official form which was stamped verifying my DOB, and identification mid-October, before the date of my dismissal, the penalisation. CEO was made aware of this and had access to this information.

It was confirmed by [names] that my post did not come under vetting legislation, this information being withheld from the WRC hearing, yet [the CEO] deliberately mislead the board to influence support, his retaliation, leading to a summary dismissal with no right of an appeal – again procedural justice denied.

I complied with all my legal obligations under my contract of employment, there being no Whistleblowing Policy, which is a requirement under EU law, the requirement of member states is the enactment of the Protective Disclosures Amendment Act. There are criminal liability sanctions under the Amendment Act for failing to establish and operate internal whistleblowing channels. Penalty fine 250,000 euro and two years imprisonment.

Toxic Environment

Occupational Stress – sick note 2nd November 2023, demands of job and the working environment exceeded capacity to meet, office down a person, negative gossip, staff paid off, staff targeted for redundancy, a WRC hearing listed for another employee in November 2023, a breadcrumb trail, in a social setting you would walk out. I was prevented from working with [Accounts Assistant] in a handover, which caused difficulty in accessing files, financial procedures and the re-direction of supplier invoices, the respondent’s submission is different.

Respondent

Allegations from the respondent are unfounded, it’s a retaliation based on the asking of awkward questions, making a disclosure, highlighting lack of stewardship, and the failings of Director responsibilities. The only recorded supervision meeting I had with the CEO  –  [documents referred to - discussed in Findings Section

Accompanied by a postdated arbitrary performance review and a flawed disciplinary process. There is no concrete evidence of what is alleged. I acted professionally and showed respect to all staff and service users to whom I came within regular contact, the refuge being an inappropriate place to conduct administrative business.

 Clarke v CGI Food Services Ltd and CGI Holding Ltd [2020] IEHC 368 (31 July 2020)

It was likely that there were substantial grounds for contending that the dismissal had resulted wholly or mainly from the employee having made a protected disclosure. Factors supporting the argument that the performance issue was a device to remove the plaintiff/respondent included:

•                 It seemed to have only emerged after the start of awkward questions by the plaintiff.

•                 The complainant had been summarily dismissed as if guilty of gross misconduct, as opposed to the procedure for dismissal for suboptimal performance; thus, there had been no oral or written warning or final written warning.

•                 The proposal to have an independent barrister as chair of the disciplinary hearing had not been followed through.

•                 The employer had failed to have an independent chair, appointing the same person as had already made findings against the Plaintiff and had engaged in unhelpful correspondence in advance of the disciplinary meeting in which relevant material was apparently not provided.

•                 A lack of affidavits from those involved in the disciplinary meetings.

•                 A lack of proper teasing out of the issues at the disciplinary meeting as might have been expected if it had been a genuine process – the evidence from the employee’s side was that no questions were asked.

Other questions I would like to find answers to –

1.                How did the problem come to light ?

2.                The results of an investigation why performances were poor.

3.                Evidence of a warning that a performance is short of expectations.

4.                Help and counselling on improvement, when I asked for time, it was taken as a weakness and incompetency.

5.                Evidence of monitoring warnings and improvements.

6.                Evidence of a final warning that is clear and unequivocal, setting out the problem, the consequences of failing in meeting expectations, and when the consequences would be likely to result.

7.                Show evidence of any failures to meet the standard of the final warning and provide evidence giving me an opportunity to respond.

8.                Consequences of failing to meet targets.

9.                Unreasonable targets leading to dismissal is unfair dismissal.

Red Flags

[List of issues included – dealt with where relevant in evidence.

The CEO knew no bounds and subjected me to reputational and emotional abuse with comments on my date of birth that were not factually correct, swallowed by a board without question or debate, a board that refused me an appeal, my dismissal being unfair, was conducted without due regard for fair procedures, regardless of the clause in the contract “either party may terminate employment during the probation” is not a defence as the charity did not adhere to its own disciplinary procedures, or the code of practice on Grievances and Disciplinary Procedures S.I. No. 146 2000 (Labour Court, Caroline Jenkinson, January 27th, 2011).

A considerable amount of social science literature shows that in circumstances of extreme crisis, group contagion occasionally gives rise to violent acts of scapegoating and mindless conformity. [The CEO] manipulating [the Respondent’s] board to rubber-stamp his ill-conceived and pre-emptive proposals to have me unfairly dismissed, a group cohesiveness that wilfully undermined fairness, objectivity and a fact-finding.

Other evidence that Mr. [A] was a board member 1st November 2023 can be taken from the respondent’s board minutes held 1st November 2023. A board member helping i.e. aid and assist is meddling and a serious conflict of interest in which I objected to.

[The CEO] deliberately exaggerated charges against me and made unfounded charges of uncertainty against me concerning DOB and name, endlessly recycled in an unprincipled attempt to blacken me thus losing my job, a job I loved with great colleagues. The board believing him developing an “an aimus” against me. His actions being intentional and there was nothing reckless about it. 

[The Respondent] is well aware of my name and DOB, the DOB being a protective characteristic. I submitted a Garda vetting application checked by [Name], complete with a signed Garda verification of DOB mid-October, the result of the vetting came back as a post that did not qualify for vetting under current legislation (Name). The incompetence shown by [the CEO] in not knowing that my post did not qualify under current legislation is breathtaking, it caused great discomfort as he asked me once “is there something I should know” which was a insinuation. [Name] was informed 8th November 23 that Garda vetting did not apply to me, this information being withheld or was it.

I reasonably believed that the information disclosed in my email tended to show a wrongdoing. The burden of proof lies with the respondent, and they must prove I did not make a protective disclosure. The outcome of my protective disclosure would make a welcome change in culture at [The Respondent] and maybe bring about many changes such as, a change of attitude regarding appeals, reduction of CEO power, the introduction of a whistleblowing policy, and automatic unbiased decision making.

The respondent’s assertions that I did not co-operate with Mazars is factual untrue, I had conditions which were denied.

The following are testimonials – 18th August 23 – Email from Mr.[A] , great work and thank you for reconciling the union fees and bike to work deductions. 30th August 23 – Email from [the CEO] many thanks for this, I know you have your eye on the prize, very productive accounts meeting today, board pleased with accounts and trojan work done on audit.

I have suffered a terrible injustice and detriment which has been very humiliating. The accusations are even worse considering the irony as The Respondent is a domestic violence charity. The hearing today, the follow up submissions and costs could have been avoided if I were given a chance to explain my side of the story which [The Chairperson] was not open to.

I seek reinstatement of my post.

Legal submissions were also made regarding  the terms: ‘Relevant information’, ‘Reasonable Belief’ , ‘Relevant Wrongdoings’, ‘likely’, and ‘Motivation’

The Respond delivered a written submissions and documentation. The submission, edited for relevance and anonymised, contained the following key points: 

INTRODUCTION

1.1 The Complainant commenced employment as a Finance Manager with the Respondent on September 1st, 2023.

1.2 The Respondent is a charity which is the largest provider of front-line services to women and children who are suffering domestic abuse in [Area Indicated].

1.3 The Complainant’s employment terminated on November 2nd 2023.

1.4 The Complainant is seeking adjudication under S8 of the Unfair Dismissals Act 1977.

FACTUAL BACKGROUND

2.1   The Complainant was interviewed and offered the role of Finance Manager by [The Respondent] A contract issued on August 29th, 2023 and he commenced employment on September 1st, 2023.

2.2 An express clause in his employment contract outlined the requirement for Garda Vetting given the service offered by the Charity. It was clearly outlined that “

“failure to obtain satisfactory Garda Clearance renders this contract null and void”.

Additionally, it was outlined that

“Employees are expected to assist fully, honestly and speedily with all ongoing requests from [The Respondent] in this regard. Failure to do so may result in disciplinary action, up to and including dismissal”.

2.3  A further express clause outlined that the Grievance and Disciplinary policies were attached to the contract.

2.4 A clause outlining the approach to “Probationary Period, Supervision and Performance Review” outlined that

“During the first six months of your employment you will be on probation. In the probationary period, both parties are free to terminate the contract of employment for any or no reason…[The Respondent]’s disciplinary procedure will not be applicable during the probationary or extended probationary period”.

2.5 The Respondent signed the employment contract on August 31st, 2023 confirming that “all statements and representations which I have made to [The Respondent]in application for the above position are true and correct”.

2.6 A number of performance issues arose during the course of the Complainant’s short tenure. The Complainant had a meeting with the CEO of the Charity on Thursday, September 21st, 2023 at which a number of these performance issues were highlighted. The Respondents reserve the right to adduce further evidence at the hearing should anything else arise. However for the purposes of outlining matters in the  submissions the principal performance issues were;

The Accounts Assistant left [the Respondent] because she had concerns about how the Complainant handled payroll, ignored Paperless and had communicated with her by email in a very strong manner which she was upset about. She met with the CEO and the Finance Consultant Mr. [A] on September 26th 2024 to outline this as the primary cause of her departure.

The Complainant failed to meet any deadlines during his short tenure. He did not fully listen or take notes on what was required, and information had to be given repeatedly to him.

There were issues with the Paycheck Plus payroll process systems in both September and October when he took over the management of payroll.

There was a delay in producing the August 2023 Management accounts and he failed to produce the September Management accounts despite reminders and offers of assistance.

There was no handover conducted with the Accounts Assistant at the time of her departure despite being given a comprehensive list of areas to cover.

There was incomplete documentation conducted with AIB.

The Complainant did not complete the Audit tender during the week of October 2nd, 2023 as agreed and this was still not complete until he was reminded again about it on October 18th, 2023.

The Complainant exhibited over familiarity with clients in the Refuge and many of his daily engagements with staff and members of the Board were again overly familiar and not in line with the charity’s code of conduct nor Dignity at Work policies.

During the months of September and October, the Complainant had two different meetings with the CEO where concerns over his performance were raised.

It came to the attention of Management that the Complainant had submitted his date of birth by email on September 8th 2023 to facilitate being set up on the systems, yet submitted a date of birth that had a six-year difference one month later. This was despite being asked on numerous occasions for his details to fulfil with the Garda Vetting approach being taken by the Respondent. From an individual operating in such a central and important role as “Finance Manager” this caused [Respondent’s] Management further disquiet and concern.

2.7 On Friday October 27th, 2023 an email was sent to the Complainant by the CEO asking when the September Management accounts would be provided as they had been due on October 26th, 2023.

2.8 The Complainant responded by email on the same day indicating that

“there was a draft loss of €33,000 and I am reviewing why this was the case, on due diligence I am finding a lot of postings made by Barry that need explanation and correction, I cannot go on with these figures any longer, ie prepayments, accruals, unearned income. I must do a thorough clean up now in order to pass audit by end of January 2024. I need some extra time please.”

2.9 The CEO and [the Respondent] were aware that the Charity was in surplus, and no such loss could have existed. This email added to continuing ongoing concerns about the Complainant’s competence and ability to discharge the finance function properly. It was suggested to the Complainant that Mr. [A] would assist him and review the figures with him for the September accounts. The Complainant then went out on sick leave on October 31st 2023.

2.10 At a Board Meeting on November 1st, 2023 the CEO advised that the “competence of the Finance Manager being a major concern”. The minutes of the Board meeting go on to outline that there was a HR discussion on the performance of the Complainant. The minutes reflect that the CEO outlined that it became apparent since the Financial Consultant and the Finance Assistant left that the Finance Manager was not capable of completing the day-to-day tasks. There was also evidence that the Complainant was not forthright in terms of completing his pre-employment documentation and Garda Vetting application”. There appeared to be discrepancies in both his name and date of birth which caused concern. It was decided, by the Board, that it was in the best interests of the Charity to conclude the Complainant’s employment given he was still on probation and there were so many evident performance issues.

2.11 Attempts were made to speak to the Complainant with no success and by letter dated November 3rd, his employment was terminated with immediate effect. A copy of that letter is attached at Appendix 5.

2.12 Following his termination the Complainant has issued written communications to staff members, Board members outlining a number of issues with the handling of the finances and other data by [the Respondent]. On November 6th, 2023, the Complainant has made complaints to the Garda Fraud Squad, the Charities Regulator and TUSLA citing alleged misappropriation of funds by the CEO of the Charity.

2.13 These matters are now the subject of a detailed investigation by the independent consultancy firm Mazars. The Complainant has been invited and requested to take part in that investigation and he has refused.

[2.14 Details of DATA Access request excluded ]

3 THE COMPLAINANT’S SUBMISSIONS

3.1 The Complainant contends that he made a “protected disclosure” on October 27th, 2023 when he sent the email already cited at Appendix 3. He indicates that an email requesting more time to complete the fundamentals of his role amounts to a protected disclosure. By his assertions here, he is agreeing with our position that anything that occurred post termination is moot and should not form part of any of the considerations of the Adjudication Officer except as further evidence of the vexatious and potentially defamatory nature of the Complainant’s behaviour. His extended communication trails with professional standards bodies, the Gardai Fraud squad, stakeholders connected with the Charity and others have caused grievous upset and stress to those employees and Board members of [the Respondent] that he has repeatedly named.

3.2 He cites the lack of appeal as a breach of his right to fair procedures. The Complainant was on probation and his contract expressly facilitates the termination. The Respondent attempted to make contact with him on a number of occasions such that the termination could be communicated to him but with no success. Hence a letter of termination issued.

3.3 The Complainant has refused to take part in the external independent investigation the Charity has commenced despite his alleged concerns about governance and the Charities quick and fulsome response in engaging Mazars to handle the matter. Reference to data Access Request excluded]

3.4 He cites his “reasonable belief” of relevant wrongdoing. A mere email requesting more time is not sufficient in particular from a Complainant who is so well equipped to go to extreme lengths post termination to make complaints about [the Respondent], its staff and its governance. Had the Complainant a genuine “reasonable belief” the Complainant’s submissions evidence that he was well aware of what was required to exercise his rights to make a “protected disclosure”.

3.5 The Complainant’s submissions make some worrying assertions about “garda vetting” requirements. It was a choice of the Agency to ensure that staff were sufficiently garda vetted regardless of role given their engagement with vulnerable service users and their children on a daily basis. His contentions in this regard, and his lack of understanding around the importance of this demonstrates the continued spurious nature of all that he is alleging.

3.6 At the conclusion of his submissions, he indicates that the outcome he seeks from his alleged “protected disclosure” is “a welcome change in culture at [the Respondent], a change in attitude regarding appeals, reduction in CEO power, and automatic unbiased decision making”. A protected disclosure corrects wrong and “relevant” wrong – none of what the Complainant asserts above was raised by him during his tenure nor fit within the category of “relevant information”. They are merely statements made as he was dis-satisfied with his termination.

THE RESPONDENT’S LEGAL POSITION

4.1 The Protected Disclosures Act 2014 as amended by the Protected Disclosure Act 2022 demands a robust approach to the investigation of wrongdoing and the provision of feedback to the person making the disclosure. S21 of the 2022 Act alters the position originally outlined in S21 of the 2014 Act and provides that “in any proceedings by an employee under the Workplace Relations Act 2015 in respect of protected disclosure, the penalisation shall be deemed, for the purposes of the 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”.

4.2 The nature of what constitutes a protected disclosure was examined in “Simpson v Cantor Fitzgerald Europe [2121] IRLR 238 51 and the position was affirmed that it is wrong to create a rigid dichotomy between “information” on the one hand and “allegations” on the other. In order for a communication to be a qualifying disclosure it has to have sufficient factual content and specificity such as is capable of tending to show one or more of the matters listed as a relevant wrongdoing.

4.3 The issue of probation was examined in the Court of Appeal case of O’Donovan v Over C Technology Limited [2012] IECA 37 the Court clearly outlined that

“During a period of probation, both parties -are and must be – free to terminate the contract of employment for no reason, or simply because one party forms the view that the intended employment is, for whatever reason, no something with which they wish to continue”.

4.4 The Unfair Dismissals Act 1977 outlines that the dismissal of an employee shall be deemed for the purposes of this Act not to be an unfair dismissal if it results wholly or mainly from one or more of the following;

The capability, competence or qualifications of the employee for performing work of the kind which he/she was employed to do by the employer.

The Conduct of the employee.

The redundancy of the employee.

The employee being unable to work or continue to work in the position which he/she held without contravention of a duty or restriction imposed by or under any statute or instrument made under statute.

APPLICATION OF THE LAW TO THE FACTS

5.1 In order to come under the protection of the Protected Disclosures Act and a claim for penalisation without the requisite twelve months service the Complainant must have made a protected disclosure from which he alleges penalisation. The Complainant’s submissions contend that the alleged disclosure the Complainant is referencing was the email he sent on October 27th, 2024. There was no sufficient factual content in that email that one could infer was relevant information about “wrongdoing”. It was merely an email with incorrect information about losses that had not occurred and a request for more time. It was evidence yet again of the Complainant’s inability to meet deadlines, hence putting the financial management of the Chairty at risk and resulting in his dismissal on justified grounds. On termination of his employment, the Complainant made a detailed protected disclosure inferring he is well aware of the rigours of the legislation in that regard. The Respondent strongly contends that he did not make any protected disclosure during his time in their employment, should not be afforded the ability to claim penalisation under the Act and was simply looking for additional time to meet a deadline.

5.2 Without prejudice to our position on the alleged protected disclosure simply constituting a request for further time, the Respondent’s position on “justified grounds” for dismissal is fully supported by the evidence. There were clear performance issues. The Complainant was unable to meet deadlines, conducted himself inappropriately with service users and members of the Board, refused to comply with the Garda Vetting process in a timely manner and then submitted two different dates of birth. He demonstrated a lack of the competence level required to fulfil the responsibilities of the role. There was no nexus between an alleged disclosure and his termination. He had already had meetings with the CEO to discuss performance gaps which were followed up by email. His ongoing performance simply did not support the continuance of his employment.

5.3 The Complainant was in breach of the terms of his employment contract. There is uncertainty about his date of birth in contravention of the express clauses of his employment agreement. Additionally, his refusal to comply fully with the Garda Vetting process would vitiate the contract regardless of his position on whether it was “essential” or not.

5.4 The Complainant was on probation and there is express provision for termination by either party without reason. The Respondent was invoking that clause in terminating his employment.

CONCLUSION

6.1 The Complainant’s employment was terminated as there had been a number of performance issues highlighted during the two months of his tenure. Additionally, there was concern regarding the uncertainty around personal representations made by him.

6.2 The Complainant’s email of October 27th – that he is now alleging was a Protected disclosure – does not either fit within the ambit of a grievance nor a Protected disclosure. It does not disclose “relevant information” as the information around the alleged loss is factually incorrect, and the Respondent could not at any point have inferred that this represented a Protected Disclosure hence bringing the complainant within the protection of the Act.

6.3 The Complainant had behaved worrying and inappropriately during his time at [The Respondent]and in the best interests of the Charity and its staff his employment was terminated. All matters raised by him are the subject of investigation, but the initiation of that investigation only commenced after his employment had terminated and he formally raised a Protected Disclosure through Board channels. His interpersonal skills and communication, in addition to his “over friendliness” with some clients of the Refuge and the Chair of the Board were matters of grave concern. There was no nexus between his alleged protected disclosure and his termination.

6.4 [Paragraph omitted as issue referred to arose after termination]

6.5 In this instance, there was no penalisation. The Complainant’s employment was not terminated unfairly, and his claim should fail. The Respondent asserts that his matter is of such a spurious nature that it should fall within the Adjudication Officers jurisdiction to decide the matter without the necessity for a further oral hearing.

Part 1 General Overview

Protected Disclosures Act 2014 – Legislative Framework

The Protected Disclosures Act 2014 came into force (by way of S.I. No. 327 of 2014) on the 15th of July 2014. It was amended by the Protected Disclosures (Amendment) Act 2022 which came into operation (by way of S.I. No. 510 of 2022) on the 1st of January 2023 and further by S.I. No. 375 of 2023 which came into operation on 22 July 2023. All of those amendments were in force when the events the subject matter of this claim arose in October and November of 2023. In this decision the Act along with the amending legislation will collectively be referred to as “the PDA”. 

The legislative scheme is evolving. The statutory provisions are complex and - certainly in the case of unfair dismissal - somewhat diffuse. However, from the point of view of the present claim and to explain the reasoning, a broad outline of the statutory matrix follows.

The PDA prescribes civil remedies for persons who are penalised and/or who suffer detriment for making protected disclosures. There are four main categories of Protected Disclosure claims which can be made under the PDA as follows:

1. Dismissal Based Penalisation Claims - Section 11 of the PDA

These claims must be processed as Unfair Dismissal claims pursuant to the Unfair Dismissals Acts. These claims are processed by the WRC by way of Section 8 (including 8A) of the Unfair Dismissals Act 1977 pursuant to several amendments made to that section. However, they are not the same as other unfair dismissals cases and they constitute a different category of unfair dismissal claim.

In addition, claims falling into this category are also different from claims where the alleged penalisation is not dismissal. 

1. Non-Dismissal Based Penalisation Claims - Section 12 (1) and Schedule 2 of the PDA

This type of claim arises from alleged penalisation contrary to Section 12 (1). That section prohibits actual or threatened penalisation of an employee “for making a protected disclosure”.  However as explained below, different rules apply to such claims when compared with Dismissal Based Claims.

1. Claims made through the Civil Courts for Interim Relief pursuant Sections 11 (2), 12 (7A) and Schedule 1 of the PDA or for damages for breach of Section 13 of the PDA. Such claims are processed by the Civil Courts rather than through the WRC.

The Nature of the Complainant’s Case

The case made by the Complainant is that he sent an email to the Respondent’s CEO and therefore to his employer on the on the 27th of October 2023. That is not in dispute.

The Complainant alleges that the email of the 27th of October 2023 (“the Email”). was a Protected Disclosure. This is disputed by the Respondent.

The Complainant was dismissed on the 2nd of November 2023 at which time he had less than twelve months’ service with the Respondent. These facts are not disputed.

The Complainant alleges that he was dismissed in retaliation for making the protected disclosure and that he was therefore unfairly dismissed. This is disputed.

For the reasons set out below the claim is a Dismissal Based Penalisation Claim which falls into Category 1. above and is governed by the Unfair Dismissals Acts as amended by Section 11 of the PDA. The Unfair Dismissals Acts will be collectively referred to as “The UDA”

Dismissal Based Penalisation Claims Compared with Other Unfair Dismissal Claims

The amendments inserted into the UDA by Section 11 of the PDA create a special and unique category of unfair dismissal claim. Where the requirements of the UDA (as amended by Section 11 of the PDA) are satisfied, two provisions of the UDA are affected in the following way:

1. Section 2 (1) (a) is disapplied and there is no service requirement at all. [Section 6 2D of the UDA (as amended by Section 11 (1) (c) of the PDA)]. [In addition, Section 3 is also disapplied. Section 3 relates to dismissal during probation, but this issue and its relevance will be discussed separately in Part 4 of this decision].

1. Section 7 Subsection (1A) is inserted into the UDA by Section 11 (1) (d) of the PDA. The maximum compensation award available increases from a maximum of 104 weeks to a maximum of 260 weeks, [However, the basis of computation of compensation remains the same.] 

The above provisions are only engaged where the terms of Section 6 (2) (ba) are met. Section 6 (2) - including the additional wording inserted by Section 11 of the PDA - provides (where relevant) that

“… the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal if it results wholly or mainly from…

(ba) the employee having made a protected disclosure”

[Emphasis added]

Thus, where the terms of Section 6 (2) (ba) are met, the amendments to the service requirement and the increased maximum available compensation will apply, and the dismissal will be deemed unfair.

Where an employee has more than twelve months service and dismissal is not in dispute, there are two ways in which an unfair dismissal claim can be pursued.

1. The claim can be presented in the same manner as any other dismissal in which case, pursuant to Section 6 (1) of the UDA, the dismissal is deemed unfair unless there were substantial grounds justifying it.  This puts the burden of proof onto the employer to justify the dismissal. However, in such a case the amended provisions of the UDA as inserted by Section 11 are not applicable. Accordingly, the service requirement applies, and the compensation is limited to a maximum of 104 weeks. 
2. The Claim can be presented as a Dismissal-Based Penalisation Claim pursuant to Section 6 (2) (ba) of the UDA as amended by Section 11 of the PDA. If the terms of Section 6 (2) (ba) are met then there is no service requirement, and the maximum available compensation is boosted to 260 weeks. However, the burden of proof is on the employee to establish that the dismissal resulted wholly or mainly from the making by him/her of a protected disclosure.

In both cases, a dismissal (whether actual or constructive) must be established as a prerequisite. Thereafter the burden of proof is different. If Section 6 (1) applies, the employee will obtain the benefit of the reversed burden of proof, but he/she must have at least twelve months’ service and the compensation cannot exceed the usual 104 weeks maximum. On the other hand, if the claim is based on Section 6 (2) (ba), to gain an exemption from the service requirement and/or to access increased maximum compensation, the burden of proof is on the employee to establish that the dismissal resulted wholly or mainly from the making by him/her of a protected disclosure. Arguably, an employee who has twelve months’ service can advance a claim pursuant to both sections simultaneously on an either/or basis but because the method of compensation is loss-based (pursuant to Section 7) as with any other dismissal, there would be no advantage to advancing a Section 6 (2) (ba)  based claim (where the burden of proof is on the employee) unless the losses sustained exceeded the usual 104 week maximum. By contrast however, where, as in the present case the dismissed employee has less than twelve months’ service, then he or she has no choice but to advance the claim pursuant to Section 6 (2) (ba). Where this is done and the burden of proof applicable to such a claim is met, the service requirement does not apply. However, even then, the compensation available, although subject to an increased maximum jurisdiction, remains to be calculated exclusively on the basis of losses attributable to the dismissal. 

Dismissal Penalisation Claims and Non-Dismissal Penalisation Claims Compared.

Section 12 (1) of the PDA introduced a general prohibition against actual or threatened penalisation by an employer of an employee “for making a protected disclosure”. However, Section 12 subsection (2) then excludes the application of Section 12 (1) to Unfair Dismissal Claims. Claims under Section 12 (1) are governed by a different set of rules which do not apply to claims governed by the UDA.

This issue was recognised in a decision of a WRC Adjudicator in the case of A Care Worker v. A Residential Setting ADJ-00019062. In that decision, the Adjudicator, noting the amendment to the UDA introduced by Section 11 of the PDA stated as follows:

“The combined effect of the above amendment to the Unfair Dismissals Acts to Section and Section 12(2) of the Act of 2014, is that where a complaint relates to a claim of penalisation for having made a protected disclosure, and where the detriment claimed is one of unfair dismissal, the facts of the case and any applicable redress fall to be considered solely under the provisions of the Unfair Dismissals Acts.”

Although that decision was issued in 2019 prior to the amendments introduced from the 1st of January 2023 by the Protected Disclosures (Amendment) Act 2022, it is still a correct statement of the law on this particular issue.

Section 12 (1) Non-Dismissal Based Penalisation Claims are a separate category from Dismissal based Penalisation Claims. They are governed by different rules and procedures. Section 12 (1) and Schedule 2 of the PDA and Section 41 and Schedule 5 Part 1 Item No 28 of the Workplace Relations Act 2015.

As regards claims made to the WRC under the PDA, there are two important differences at present as between Non-Dismissal Based Penalisation Claims and Dismissal Based Claims with regard to the calculation of loss and as regards the burden of proof in relation to the causal link as between the protected disclosure and the alleged penalisation (penalisation causation).

As regards the calculation of compensation in a Non-Dismissal Based case the compensation is assessed in accordance with Schedule 2 paragraph (1) (c) as: “such amount (if any) as the adjudication officer considers just and equitable having regard to all the circumstances”. This wording is not linked directly to “loss attributable” as it is in relation to claims for unfair dismissal under the UDA.

As regards causation of detriment in a Non-Dismissal Based claim pursuant to Section 12 (1) the 2022 Amendment Act has introduced a new provision Section 12 (7C). This provision provides as follows:

(7C) 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.

This provision introduces a rebuttable presumption that penalisation has been as a result of the employee having made a protected disclosure. As the provision only applies to contraventions of Section 12 (1) a claim for non-dismissal-based penalisation will benefit from this presumption,  whereas in a dismissal-based penalisation claim the employee must still prove that the dismissal resulted wholly or mainly from his/her having made a protected disclosure,

It is noteworthy that Section 13 which deals with tort claims was also amended with the addition of a similar provision as Section 13 (2B) which states: 

“In any proceedings under this section in respect of alleged detriment caused to a person, the detriment so caused shall be deemed, for the purposes of this section, to have been caused as a result of the person or another person having made a protected disclosure, unless the person whom it is alleged caused the detriment proves that the act or omission concerned was based on duly justified grounds.

This presumption only applies to claims under this section I.e. Section 13.  Section 13 (2) provides that a claim under that section cannot be maintained in tandem with a claim for unfair dismissal or a claim under Schedule 2 – the latter being a claim under Section 12 (1).

In summary a dismissal-based penalisation claim does not have the benefit from a reversed burden of proof in relation to penalisation causation of the kind which now applies to non-dismissal penalisation or tort claims and the burden in relation to penalisation causation on an employee making a dismissal-based penalisation claim under the UDA as amended by Section 11 remains. That burden as per section 6 (2) (ba) is to establish that the dismissal resulted wholly or mainly from the making by the employee of a protected disclosure.

In this case it is not disputed that the Complainant had less than twelve months service when he was dismissed. In normal circumstances the claim would be excluded by Section 2 (1) (a) of the UDA for want of a minimum of twelve months’ service at the date of dismissal. The only way for the Complainant to avoid his claim from being excluded under this section is to bring it within the terms of Section 6 (2) (ba). To do so he must demonstrate that his dismissal resulted wholly or mainly from the making by him of a protected disclosure.

It is important to note that the wording of Section 6 (2) (ba) places the burden of proof on the Complainant to establish that the dismissal resulted wholly or mainly from his/her having made a protected disclosure. The usual reversed burden of proof in unfair dismissal claim provided for in Section 6 (1) of the UDA - where a dismissal, once proven or admitted, is deemed unfair unless there were substantial grounds justifying it - does not apply to the special category of unfair dismissal claim provided for by Section 11 of the PDA which inserts the above amendments. This is a significant issue for the Complainant in this case as he did not have a minimum of twelve months service at the date of dismissal.

It follows from the foregoing that if  Complainant cannot meet the threshold of proof that his dismissal resulted wholly or mainly from his making a protected disclosure, Section 6 (2D) is not applicable and the unfair dismissal claim will therefore be excluded by Section 2 (1) (a) of the UDA for want of a minimum of twelve months’ service at the date of dismissal.

The essential matters which must be established for the Complainant’s claim to succeed are:

I .            That he/she made a “Protected Disclosure” as defined in the PDA.

II.            That his dismissal resulted wholly or mainly from the making by him of a Protected Disclosure.

I will consider each of these issues as they apply to the present case by reference to the relevant evidence and submissions.

Part 2 EVIDENCE

The Complainant gave evidence on affirmation.

The Complainant is a qualified Chartered Accountant and a Fellow of Chartered Accountants Ireland (F.C.A). His association with the Respondent began on the 27th of June 2023 at which time he was engaged as an independent contractor. He was doing so well that he was offered and accepted employment with the Respondent commencing on the 30th of September 2023. His work was excellent, and he was surprised when he was let go.

The Complainant was employed as the Finance Manager. His normal duties included ensuring that the Respondent’s accounts were to enable him whenever necessary to summarise the financial position of the organisation for the purposes of preparation of annual returns. In respect of annual returns the Charities Act imposes a higher obligation of trust on a charity. The Complainant was not an auditor either internally or externally. An external auditor was in place. There is a requirement under the Charities Act for an internal auditor as well but there was no internal auditor. 

In relation to the keeping of books of account, this is a bookkeeper’s job which initially was not one of the Complainant’s duties. Until October 2023 the bookkeeping was being done by the Accounts Assistant, and this took the weight off the Complainant who could then catch up om outstanding issues including Revenue queries which it was his responsibility to handle. When the Accounts Assistant left in October 2023 the Complainant took over the bookkeeping, payroll and creditors duties in addition to his existing roles. Back in June 2023 when the Complainant started as a contractor three people were working in the accounts area of the organisation. In addition to the Complainant and the Accounts Assistant Mr. A was also retained. He was then a Financial Consultant but he later became a board member. When the Complainant joined as a contractor in June 2023, Mr A was closing off the accounts for the year ended 2022 and dealing with the redundancy of the previous Finance Manager.

In October 2023 Mr. A was not working with the Complainant. The Complainant thought that Mr. A may have been a board member by that time. Nonetheless Mr. A “meddled/interfered regarding queries on the accounts”. However he was entitled to ask the Complainant when the Management Accounts would be ready and when he made this enquiry to the Complainant, the Complainant replied that he would get them as soon as possible and this exchange was recorded in emails between them on or about the 26th of October 2023.

The next day the Respondent’s CEO, communicated with the Complainant. The emails, in sequential order in accordance with the times of sending embedded in the text, were as follows:

1. Sent: Friday, October 27, 2023 10:02 AM

From CEO to Complainant

Subject: September Management of Accounts

“Hi [Complainant’s name], can you please advise me when the management accounts will be available for review? I note it was due Thursday 26.

Thanks”

2. Sent: Friday, October 27, 2023 11:07 AM

From Complainant to CEO

“We have a draft loss of 33000 and I am reviewing why this is the case, on due diligence I am finding a lot of postings made by [named person] that needs explanation and correction, I cannot go on with his figures any longer, i.e. prepayments, accruals, unearned income. I must do a thorough clean up now in order to pass audit by end of January 2024. I need some extra time please.”

[This email is highlighted as it was alleged protected disclosure.]

3. Sent: Friday, October 27, 2023 1:06:15 PM

From: Complainant to CEO

Subject: Current Account

“Hi [NAME of CEO]

1.                Can you increase the threshold limit on the Current account to 120k please re: risk management salary in November.

2.                I also need a Hash tag downloaded onto my computer to approve bulk payments; administration approval is needed. re: salary.

3.                Debit card is in suspension still, can you follow up on this again please. “

4. Sent: Friday, October 27, 2023 2:57 PM

From: CEO to Complainant 

Subject: Re: Current Account

Hi [Complainant’s name], as discussed , I'll follow up again all items that remain outstanding . Also, [Mr. A] will be on site next week Tuesday for the week to assist with the anomalies in the management accounts and to assist with other outstanding matters. He will be on site at 8:30 am

Thanks

5. Sent: Friday, October 27, 2023 3:03 PM

From: Complainant to CEO

Subject: RE: Current Account

I am not [NAME of CEO], it undermines my role, [Mr. A] as a board member and I as nonexecutive should be independent of each other.

6. Sent: Friday, October 27, 2023 3:02 PM

From: CEO to Complainant 

Subject; Re: Current Account

Hi [Name of Complainant], I have addressed that and am comfortable with him assisting and supporting.

The Complainant said that Email 1 (the first in the above sequence above), was a perfectly reasonable request for information. His reply, Email 2 above sent by him to the CEO was a protected disclosure. He had a suspicion that postings to the accounts had been duplicated under general ledger headings. He explained that if he had an expectation of a cost in a year and that cost had been paid, he could accrue/calculate the expected cost that year. However, the costs were being treated as current liabilities on the balance sheet. The Complainant was not confident that the costs were posted correctly, and a thorough review was required to see if a correction was necessary. Substantial payments leaving the bank account in October 2023 triggered the query and there was a snowball effect from there and he wanted to see what else was outstanding. The Complainant could not recall the exact amounts involved but he did see a substantial payment and he just needed time to double-check the posting. He could nor prepare a report for the Board with inaccurate figures. He had to say “stop!”. He had been getting piece-meal handover from the previous Accounts Assistant. He was planning to call the creditors to get the proper paperwork.

As to whether there was wrongdoing on the part of the Respondent, he wasn’t sure at that time, but he was quite confident that Company Law was not being complied with in that books and records were not being kept which is a serious offence. Although he did not state this in his email (Email 2 above) he did use the phrase “pass audit” and he did not say that lightly. He was there to do a job, and he expected this communication to be taken seriously. If he had received it, he would have seen it as a red flag as accounts don’t lie. He would have trusted his accountant and given him more time instead of sacking him. The Complainant drew a distinction between just raising queries on the accounts and highlighting wrongdoing; it was very much the latter. He was pointing out facts, that there was a danger that company law had been or was being breached which is a criminal offence. There was also a breach of trust. Management accounts must agree with the books of account which go out to the external auditor. The two sets of accounts must be consistent.

When he received the email from the Complainant, the CEO initially did the right thing. He acknowledged that there were anomalies, and he said that he would get Mr. A to go in and help the Complainant to reconcile the figures. However something happened between that day, the Friday before the bank holiday and the next week since the Complainant was dismissed the following Thursday. The Complainant could only assume that it was the other emails which were sent on Friday the 27th of October 2023 which altered the situation, In particular when the Complainant objected to the proposed involvement of Mr A due to a potential conflict of interest.

The Complainant referred to a text message which he sent to the CEO on the evening of the 27th of October 2023 at 18.39 which stated as follows:

 “Thank you for clearing the corporate governance issue regarding [Mr. A]  working in the accounts department over the anticipated following week, and that [Name] our Chair has approved, this will be considered a Related Party Transaction to be disclosed in the 2023 accounts.”

The Complainant said that the rules relating to a “Related Party Transaction” require that any person with decision-making power who also has a financial interest in the organisation must disclose that interest. This was so even where the conflict was harmless. The interest still has to be disclosed in the interests of transparency. If Mr. A was to lend a hand in preparing figures, even if he was not charging for that work, he still had to disclose that he was a member of the board. Even though the Complainant retained the final decision-making role in relation to the accounts, he insisted that Mr. A as a board member still had to disclose his interest even if he was only doing clerical work to help the Complainant. 

The Complainant said that he could have sorted the problems out on his own and that if he had been allowed to do so instead of being sacked, he would have had the accounts ready by the end of January 2024 to go out to the Auditors in February 2024 and to be put before the board at the Annual General Meeting in March 2024.

As to what occurred following the communications on Friday the 27th of October 2023, a bank holiday intervened, and the next working day was Tuesday the 31st of October 2023. The Complainant did not go to work that day but called in sick. He said that he would be out all week. He was suffering from stress, but he could not be sure that he said this on the call. He did not submit a sick certificate, and he could not recall specifying the nature of his illness. He recalled that he was asked to call the CEO, and he recalled that he did so at 9 am on Wednesday the 1st of November 2023. He recalled the CEO asking him what was wrong with him and where were the accounts. He recalled telling the CEO that he was not well and asking him whether he could call him later. There may have been other calls or missed calls, but he was unsure about this and could not check the mobile phone which went back to the Respondent. He was at home sleeping for much of this day.

The Complainant was dismissed by letter from the Respondent signed by the CEO and dated and received on the 2nd of November 2023. The letter stated as follows:

“I would have preferred to meet with you in person, however you are not answering my calls and texts; I note we agreed and arranged to speak today. I refer to your contract of employment with [The Respondent]  which commenced on 1st September 2023.

As you are aware from discussions and at our meeting on 22nd September 2023, and October 10, 2023, where I have had reason to bring to your attention on numerous occasions since you commenced employment, concerns regarding your work performance; in particular issues relating to you completing essential tasks on time which have placed the Finance department at risk.

Your contract of employment stipulated that; "during your first six months of employment, you will be on probation. In the probationary period, both parties are free to terminate the contract of employment for any or no reason. Should this arise, the contract may be terminated by [The Respondent] giving you one week's notice of termination or, alternatively, at [The Respondent]'s discretion, payment in lieu of one week's notice. You may also terminate the contract of employment, during the probationary period by giving [The Respondent]  one weeks' notice in writing. Your performance will be monitored during your probationary period to assess your suitability for continued employment. Should the need arise, we may extend the duration of the probationary period up to a period not exceeding eleven months. In such a case you will be notified and given details of the new probation termination date. [The Respondent] 's Disciplinary Procedure will not be applicable during the probationary or extended probationary period".

I am writing to confirm that due to the issues outlined, [The Respondent] is concluding your contract with immediate effect. As stipulated within your contract you are entitled to one weeks' notice. :

There is property which belongs to [The Respondent] that you currently have in your possession. This property is; a [The Respondent] Laptop, [The Respondent] Mobile phone, a Gate access fob and ID, Keys to filing cabinets, Refuge Office Keys and hard copies of [The Respondent] documents including all passwords to protected documents, subscriptions and other log in's you have. I am requesting that these items are returned to me no later than 3.00 p.m. on Tuesday 7th November 2023. I will arrange a courier to collect these items from you and I will contact you to inform you the approximate time of their collection. Following their receipt, payment up to Friday 3rd of November 2023, which includes one weeks' notice and any annual leave due to you will be paid by credit transfer into your bank.

[The Respondent] has an Employee Assistance Programme; this is a free support service and you may wish to avail of it as I am conscious this is a stressful period for you. I am extending this service to you until Friday 17th November 2023. Should you wish to avail of it you should telephone [Number provided].

I would like to take this opportunity to wish you well in the future. “

The next day on the 3rd of November 2023 at 19:34, the Complainant sent a detailed two-page email to a number of individuals in the Respondent’s organisation including the Chairperson of its board. It appears that it was also sent to an email address which was incorrect for the intended addressee and also to a number of individuals who were no longer associated with the Respondent. Further email communications also took place between the Complainant and the Chairperson of the Respondent’s. In his emails the Complainant raised further and more particular concerns regarding the accounts as well as allegations that he had been pressurised by the CEO with regard to the loss which he had found in the accounts. He protested his dismissal.

During this time the Complainant also made formal written complaints to the Fraud Squad of An Garda Siochana, to the Charities Regulator and to TUSLA - as the Respondent’s submission put it – “citing alleged misappropriation of funds by the CEO” of the Respondent. 

The Respondents replied to these letters and in so doing advised that it had commissioned an independent professional investigation into the accounting issues raised. However insofar as the Complainant’s emails were understood (in whole or in part) to constitute a request for an appeal of the decision to dismiss the Respondent advised:

On the 9th of November 2023:

“With regard to your request to appeal the Organisation’s decision to terminate your role on performance related grounds during your probationary period. Unfortunately there is no such right of appeal afforded and the decision to terminate your employment stands.”

And again, on the 14th November 2023:

“The decision to terminate your employment on performance related grounds stands and we will not be revisiting same”

In cross-examination it was put to the Complainant that he was not in fact doing well in his job, that he struggled to complete tasks, in particular attending to banking tasks and getting to grips with the payroll software package. The Complainant said that this was nonsense. The Complainant denied that the CEO had cautioned him in a meeting on the 21st of September 2023 regarding approaching service users and speaking to them uninvited. He said if it had been that important it would have been included in the minutes of that meeting.

Reference was made to an email from the CEO to the Complainant dated the 21st of September 2023. This email was stated to be following on from a conversation the previous day and requested the Complainant to review and progress, within suggested timelines, some outstanding tasks requiring his attention. Those tasks were

– Garda Vetting “this is mandatory and needs to be completed by 22/09/2023”

- Children’s First Training (same date for completion)

- IT Training which was to be undertaken by the 1st of October 2023

- Bank Documents to be completed by 25/09/2023

- Budget Holder Meeting

The Complainant said that the CEO never approached him regarding his engagement with service users. In fact, he said, the CEO was engaging with service users which concerned the Complainant.

As regards Garda Vetting the Complainant said that he did submit a form on the 23rd of October 2023 and it was returned by the Gardai who advised that the Complainant did not require Garda Vetting by legislation. As to the delay in submitting the form he said he was bogged down in dealing with backlog and he was very busy. He accepted that it was a term of his contract but he queried why he had been allowed on site without Garda Vetting and he said that the CEO was not Garda Vetted either.

It was put to the Complainant that the Accounts Assistant had left after 10 years’ service and after she left, she made a complaint about him. The Complainant said that he was never told this and he said that the Accounts Assistant had been “run out” by the CEO and that there had been a toxic environment between the Accounts Assistant and the previous accountant. The Complainant was not aware that the Accounts Assistant met with the CEO and Mr. A in September 2023. He did remember calling her to get passwords. He said that he had wanted to but wasn’t allowed to do a hand-over with the Accounts Assistant, he was prevented from doing this.

The Complainant accepted that he had missed several deadlines including the September 2023 management accounts for the previous month of August and the October management accounts for the previous month of September 2023. He said that these were dates which he had himself given by way of undertakings to do the tasks. The deadlines missed were low level. However, worked long hours and was professional. The day before the missed deadline on the 26th of October 2023 he had been interviewing all day and could not do any accounts work. He had problems with the payroll software which he said made errors and he didn’t trust the system. He was in work one occasion until 8 pm trying to correct errors which had been made by the system. He suggested dropping the company who worked the payroll system.

The Complainant accepted that on only one, not many occasions he was seen by the CEO with his shoes off and his feet up on his desk, but he wasn’t asleep.

With regard to the email which he was now claiming was a protected disclosure it was put to Complainant that in this email he was just making excuses for being unable to deal with his deadlines. Regarding the reference to “substantial outgoings” it was put to the Complainant that Mr. A would say that there were none, but the Complainant said that he would need to see the bank statements to deal with that issue. 

The Complainant accepted that he had a familiarity with the Protected Disclosures Act and this being the case he was asked why he did not specify relevant wrongdoings in his email rather than just looking for more time given that in his evidence he alleged that the Respondent “was not following Company Law”. He said that he couldn’t have been any more specific. He listed serious issues. He raised a red flag when he said that the accounts would not pass audit. The message meant that the Respondent had to get the issue sorted. He did not accept that this was different to pointing out major wrongdoing.

The Complainant did not agree that his objections to Mr. A helping out was somewhat problematic.

The Complainant was not worried about passing his probation and he was working well with other staff members and making good progress. There were two meetings with the CEO in September and October 2023 and, with the exception of Garda Vetting, the issues raised were minor in nature.

The Complainant gave evidence regarding his work history and losses post dismissal (discussed below)

Evidence of the Respondent’s CEO

The CEO gave evidence on Affirmation. He was the CEO of the Respondent from the period June to November 2023. He is no longer with the Respondent. The Respondent at that time had 45 employees, seven managers and three senior managers including the Complainant. The CEO was the Complainant’s direct line manager.

The layout of the facility was such that admin workers including the Finance Department were separate to the service users. The Complainant engaged socially on numerous occasions with service users and their children. There were Friday coffee meetings for victims to get together which were facilitated by professional care staff. The CEO only attended by invitation and did so twice. The CEO explained to the Complainant that he had to be careful regarding his boundaries when approaching and interacting with service users and that interacting with them was not appropriate since as his responsibilities related only to finance. When he explained this to the Complainant which he did on at least one occasion, the Complainant said that he understood but he didn’t change his interactions. The CEO said that the Complainant disobeyed a direct reasonable instruction. When managing the Complainant, the CEO said that he adopted a social care model whereby a manager speaks to a person when necessary, in a respectful way and when he spoke to the Complainant about this issue he asked the Complainant if he understood and the Complainant said that he did but the witness was not sure that he did understand. 

The Complainant was not performing well. He had difficulty completing tasks. He had difficulties operating the ‘calendar invite’ system for meetings and often he did not attend meetings saying that he didn’t get the invitation. He didn’t like the system but was offered support in operating it. The Complainant was not completing important banking tasks and invoicing. The August and September 2023 management accounts due in September and October 2023 were both delayed.

The CEO used a coaching model in that when a problem arose the Complainant was always asked what could be done to help. Whenever an issue or query was discussed with the Complainant, he always gave a story or excuse which was difficult to understand. Things were not being done. The Complainant was not following through on the accounts.

The Complainant had difficulties with a payroll system which was installed an operated by an external company. This was supposed to be a paperless system, but the Complainant insisted on using hard copy invoices which were stacked several feet in height which he used for record keeping. The Complainant refused to use the paperless system. 

On the 20th of September 2023 the CEO had a one-to-one meeting with the Complainant as reflected in an email sent the following day to the Complainant (as summarised above).

Regarding the issue of Garda Vetting the CEO reminded the Complainant that this was required and had to be done. His letter of offer specified, he was informed verbally when he was hired, and his contract contained an express clause that Garda Vetting was necessary. The Complainant said that there was an issue with his passport and that he had to go to a particular Garda station, but the CEO said that he could go to the local station closest to where he worked. The Complainant said he was going to do that.

The Complainant had not undergone Children First Training, and the CEO told him that he needed to complete this. The Complainant said that he had not had the time. The CEO said that it was important and asked the Complainant to do it by the week commencing the 25th of September 2023. The CEO said that type of follow-up would normally have been done at a lower level.

Dates were set up for the Complainant to undertake training in Calendar, Teams and other software applications. The CEO told the Complainant that he needed training in these areas having observed his lack of ability. A date for training was set up for October 2023. The Complainant didn’t accept help from the CEO’s Personal Assistant, so he was given a direct management order. The Complainant did not undergo the training. While he did not refuse outright, he did not do what he was told to do. He said he had to prioritise other tasks.

As regards the Respondent’s bank account what was required was document signed by the Complainant and the directors to allow him to use the Respondent’s bank account. A date for completing this task was set for the 25th of September 2023.

A meeting with another member of staff was suggested for the purposes of reviewing the management accounts.

The CEO said that he was coaching the Complainant in the meeting of the 20th of September 2023. By October 2023 there had been no improvement. The CEO sent an email asking when the accounts would be ready [Emai 1 above – sent on the Friday, October 27, 2023 at 10:02 AM] and received the alleged protected disclosure email. As to his reaction to it he thought it was another example of the Complainant not completing a task and catching up at the eleventh hour rather than submitting the accounts. In this case the CEO knew that the €33,000 must have been a mistake so he offered support to the Complainant from Person B who had worked in the finance department in the past and had developed procedures. On previous occasions the Complainant had not wanted help from anybody and this was another example of him not wanting or letting people help. The CEO was very worried about the Complainant’s performance.

The following Tuesday the Complainant called in sick. The CEO knew that that the Complainant wasn’t happy about Mr. A  helping and that there was a delay with the management accounts and he thought there might be a corelation between these issues and the Complainant being on sick leave. The Complainant called the CEO’s Personal Assistant rather than the CEO when he should have called the CEO.

At the Board Meeting on the 1st of November 2023 the CEO raised concerns about the Complainant’s performance, his inappropriate contact with service users, having his feet up on his desk and the Garda Vetting issue. The CEO wanted to inform the board of his plan to terminate the Complainant’s employment.

The CEO engaged a HR Consultant and tried to contact the Complainant but was only able to speak to him once when he said he was sleeping and the CEO said he would talk to him later but when the CEO called him later that day the Complainant did not pick up.

The CEO said that the Complainant’s employment was terminated based of poor performance during the probationary period for the reasons already stated in evidence. He did not consider the email alleged to be a protected disclosure as a notification of wrongdoing and the only aspect of the email that caused the him concern was the fact that there was a delay with the management accounts. Although unsure, the he wouldn’t have been surprised if the email had been shared with the board. The CEO and Mr. A did discuss the email and Mr. A, who was himself an accountant and was familiar with the accounts, said that the €33,000 loss was wrong.

In cross-examination the Complainant raised the following challenges to the CEO’s evidence.

Regarding the Friday Coffee gatherings, the Complainant said that the evidence as to these being by invitation only was the first time he had ever heard this. The Complainant put to the CEO that nobody had objected to his presence as far as he was aware and that he sat in accompanied either by the Head of Services or the Head of the Refuge for the purposes of finding out what was needed by service users. The CEO repeated that he had verbally advised the Complainant about the issue and the Complainant denied that this had ever been said to him and contended that if it had been said and he had not complied that is a serious matter which should have been dealt with in a disciplinary manner.

The Complainant denied that he refused to use the paperless accounting system but said that he was using paper back up because he didn’t trust it. The Complainant challenged the evidence that he was given a direct order to use the paperless system.

The Complainant accepted that the issue of Garda Vetting was discussed on the 20th of September 2023 as reflected in the only minute of any meeting that exists. He also accepted that he did not present his documentation when he was supposed to, but he said that he did do so eventually, and the response was that he did not need to be vetted. As to the CEO not being Garda Vetted either, the CEO denied ever saying this and the CEO was and still is Garda Vetted despite also having been informed that it was unnecessary. Counsel for the Respondent submitted that the Respondent’s employees are contractually obliged to present their documentation for Garda Vetting. The Complainant questioned what this whole issue had to do with a performance related dismissal.

The CEO said that there were many verbal dialogues as the Complainant’s office and that of the CEO were adjoining. The Complainant said that he accepted that only two one-to one meetings took place only one of which was minuted in any way which was the one on the 20th of September mentioned in the email of the 21st of September 2023. The CEO said that many dialogues had taken place and the Complainant challenged this, contending that the CEO was rarely in the office being based primarily in another county.

In relation to the loss of €33,000 which the Complainant put was a red flag, the CEO denied saying to the Complainant “We can’t show a loss to the Board”. The CEO needed to ascertain the facts and said that the figure needs to be accurate, correct and transparent.

The CEO denied creating a toxic work environment. The role of the CEO was to collaborate with all the people involved in the project and every decision was made with a dignified and respectful approach. It was all about the women and children.

Evidence of Mr. A

Mr. A gave evidence on affirmation. He was a consultant to the Respondent until October 2023. In October 2023 he joined the Board, but he then resigned from the Board on the 25th of October 2023 and reverted to being a consultant. He joined the Board again from April 2024 onwards.

When he was retained as a consultant in January of 2023 he conducted a review of the Respondent’s Finance Department. He was concerned that a risk to the organisation was presented were the Finance Manager and Accounts Assistant to be absent for any reason. There would then be nobody to do the payroll so he introduced a software package maintained by an external provider which allowed for invoices to uploaded in a paperless manner. 

The Respondent’s previous Finance Manager had been out sick and then left the Respondent. Mr. A was involved in recruiting and interviewing the Complainant. Mr. A was working in the Respondent’s organisation two days a week at this time. The Complainant joined as a contractor in June 2023 and he was very helpful finalising financial statements. However, he wasn’t happy with the payroll system that had been introduced. He had a particular issue with his own pay.

Things started to go wrong when it came to preparing and delivering management accounts for the Board. For example, in July 2023 the Complainant said there was a surplus of €110,000 but this turned out to be €54,000. Mr. A corrected incorrect postings which the Complainant had made.

The Complainant had problems with the payroll and paperless systems. The system allowed invoices to uploaded without the need for hard copies. The Complainant said that he couldn’t find the invoices on the system, but he would have found them if he had known how to use the system properly. The Complainant was given training, but he insisted on using his own spreadsheet for data which the provider would not accept. The provider wanted to use its own spreadsheet format. The Complainant also wanted the provider to “bend the rules” to help him avoid emergency tax by arranging an advance which he said a previous employer had done for him, which the provider refused to do. The Accounts Assistant tried to get the Complainant to sit with her to learn the system, but he failed to do so. The Complainant said that the Accounts Assistant was a hindrance, and he would be better off working without the Accounts Assistant. In a meeting with himself and the CEO the Accounts Assistant said that [he/she] was leaving because [he/she] could no longer work with the Complainant.

When he stepped down as a consultant and took up a position on the Board, Mr. A knew from speaking to the CEO that the Complainant had challenges completing deadlines.

Regarding the email alleged to be the protected disclosure, Mr. A spoke to the Complainant about it. The Complainant did not say that he had made a protected disclosure. He did say that there was a deficit of €33,000 which needed to be investigated. Mr. A said to the Complainant that he was surprised to hear that as there had previously been a surplus. The Complainant said that he thought that it was probably related to property spending. In a previous month a surplus of €110,000 as reported by the Complainant was in fact a surplus of €54,000. Mr. A thought that this was a similar situation, and that the Complainant had not fully understood the accounts. In fact, it turned out that the actual figure was a surplus of just under €3,000. The witness was not concerned about withdrawals form the bank account which were not significant and were no more than normal.

Mr. A did not believe that the Complainant in his email had raised a protected disclosure. He was concerned for the Complainant’s ability to discharge his functions as Finance Manager. He was unable to get his job done unless he was sufficiently managed. A person at his level should not have required such a level of management.

The Complainant challenged the evidence of Mr. A. He put to him that when, as a member of the Board he was due to come in to assist the Complainant this was in breach of the two-tier management system. Mr. A said that he resigned on the 25th of October 2023 and that he was certain about that. Counsel for the Respondent submitted that MR. A was noted as a “guest” in the minutes of the Board meeting of the 1st of November 2023. The Complainant maintained that this evidence lacked credibility.

The Complainant put to Mr. A that he did engage with the Accounts Assistant and everything was running well but that things went “pear shaped” when she left and he had to do everything himself and he didn’t get the chance to speak to her and get up to speed. Mr. A said that he himself provided the training on the new system along with the Accounts Assistant and he said that he asked the Complainant if he was happy with the training and the Complainant said that he was. The Complainant maintained that the training was inadequate. On the first and second months he did the payroll with the Accounts Assistant and on the third month he was doing it himself and that during that third month he needed to contact the Accounts Assistant who was also an accountant to ask about a particular file. The Complainant said that the interactions between them related to professional accounting issues and there was a healthy conflict. and that he was never informed that the Accounts Assistant had any problem with him.

Regarding the deadlines for the management accounts it was put to the witness that there were no written management accounts schedules and the ‘deadline’ for submission of the management accounts was one which the Complainant himself had given. The witness stated that the management accounts had to be submitted seven days in advance. The witness was not aware that the Complainant had spent the whole of the previous day before the deadline conducting interviews. The witness agreed that he saw the Complainant working late on one occasion, but he was not aware that when he was doing so, the Complainant had been trying to build up the invoices himself.

The Complainant queried the witness as to whether as a retired accountant he was in a position to give evidence on accounting issues. The witness disputed and took exception to this suggestion. As to the records and bookkeeping of the Respondent Mr. A accepted that they required improvement, but they were not in as bad a state as the Complainant maintained and that a qualified accountant would have been able to sort them out. The Complainant stated that he was one week away from getting everything in order. As to the delay in getting ‘source documents’ from the registered office out to the Finance Department location, the witness disagreed that this could take up to a month and said that it could take a week.

In re-examination the witness said that he would never have stepped down from his consultancy role if he thought the systems were untrustworthy. He stated that there had never been any external audit issue arising from the Respondent’s accounts.  

Part 3 Whether the Complainant Made a Protected Disclosure

Definitions/Relevant Provisions

The Protected Disclosures Act 2014 as amended provides (where relevant to the present claim) 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,

…(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,…

(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.

…

(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 (where relevan) provides:

“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,… “

Penalisation is defined in Section 3 (1) as follows:

“penalisation” means 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— … dismissal…,

Judicial Interpretation

The most recent consideration of the PDA was by the Court of Appeal in the case of Barrett v. Commissioner of An Garda Síochána and Minister for Justice [2023] E.L.R 165. The judgement was delivered by Ní Raifeartaigh J. with whose judgement the other members of the court concurred. I have considered three paragraphs of the most helpful judgment; paragraphs 113, 114 and 115. However, to assist my consideration of the issues discussed in those i paragraphs I have taken the liberty of considering them in a different order to those in which they appear in the judgement. 

The Significance of the Presumption in Section 5 (8).

This provision is considered in paragraph 115 of the judgement where the following statement is made:

“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.”

A careful reading of the full judgment in Barrett reveals that the provision must be interpreted as being of general application to the question as to whether a disclosure is a protected disclosure and thus every element of the definition is presumed to be satisfied. However, as the presumption is rebuttable on the balance of probabilities it must follow that if the presumption is rebutted with respect to any component of the definition, then the disclosure cannot be a protected disclosure. On the other hand, the Complainant is not required to make out a prima facie case, or to adduce any positive evidence that the disclosure does satisfy the criteria. Instead, it is the other way around and the assessment of whether the disclosure made by the Complainant was protected turns on whether the Respondent has discharged the burden of proving on the balance of probabilities that the disclosure was not a Protected Disclosure.

“Reasonable Belief”

At paragraph 113 of her judgement, Ní Raifeartaigh J. had the following to say about the component of the definition of Protected Disclosure which depends on “reasonable belief” as referred in in Section 5 (2) (a) and which is then applied to the list in Section 5 (3)

“113. I also wish to draw attention to the word “reasonable” in s.5(3). In the first place, it is important to observe that the word “reasonable” introduces an objective standard. It is not merely a question of what the worker honestly or subjectively or genuinely or emphatically believed. It is a question of whether he had a “reasonable belief”, in other words whether his belief was based on reasonable grounds, or to put it another way, whether a reasonable person would have held the belief if he had the same information as the worker. Secondly, the reasonableness of the belief of the worker must be tested according to the facts as he knew them at the time of the making of the communication alleged to constitute a protected disclosure. Therefore, information coming to the worker’s attention after the communication was made is not relevant to the court’s assessment in this regard.”

Summary List

Paragraph 114 of the judgement sets out a summary of the features of a Protected Disclosure. However it is clear that the observations made in paragraphs 113 and 115 apply to this summary list which is as follows:

(i) The communication must disclose some wrongdoing on the part of the employer; (s.5 of the 2014 Act);

(ii) The complainant must have had a reasonable belief that the employer was engaged in wrongdoing (s.5 of the Act): as always, the term “reasonable” connotes an objective standard;

(iii) The communication must have some informational content; (s.5, Baranya; CGI)

(iv) Even if the employer is already aware of the information in question, the communication may still be considered a protected disclosure if it is drawing the employer’s attention to the information; (s.3(1) of the Act)

(v) The fact that a communication concerns the treatment of the employee who is making the complaint (and not, for example, another employee) does not prevent the communication being a protected disclosure; (Baranya)

(vi) The fact that the 2014 Act was not expressly invoked at the time of the making of the communication is not an absolute bar to the communication being deemed a protected disclosure after the event; (CGI)

(vii) What is prohibited by the Act is the penalisation of an employee as a result of having made a protected disclosure; (s.5 of the Act)

(viii) Penalisation means any act or omission that affects a worker to the worker’s detriment and includes disciplining the worker; (s.5 of the Act)

(ix) There must be a connection between the communication and the event or treatment said to constitute the penalisation (implicit in s.5 of the Act; discussed in CGI decision); the precise formulation of a test in this regard remains to be definitively determined by an Irish court following full legal argument on the point;

(x) A court should be alive both to the possibility that actions by the employer which ostensibly appear legitimate on their face may in reality be connected to a protected disclosure, and the possibility that an employer is taking bona fide steps in respect of an employee who is making unfounded allegations of a connection between the two events.

[Before moving on it should be noted that items (vii), (viii) and (ix) require some adaptation. Since the Amendment Act 2022 (which was not in force when the Barrett case arose), causation in relation to a non-dismissal penalisation is now (rebuttably) presumed with effect from the 1st of January 2023. As for Dismissal-penalisation, the causation is not presumed and is subject to the “wholly and mainly” test discussed above and also in the Unfair Dismissal Findings in Part 4 below.]

The Contested Aspects of the email of the 27th of October 2023 (“the Email”)

Before looking at the contested issues I would clarify that there was no dispute that the Email was a disclosure to the Complainant’s employer nor was it disputed that the information contained therein came to the Complainant’s attention in a work-related context. Accordingly, the conditions of Sections 6 (1) (a) and 5 (2) (b) are satisfied.

The dispute in the present case revolves around the issues as to whether the Email contained Relevant Information, that is to say whether “in the reasonable belief of [the Complainant] it tends to show one or more relevant wrongdoings as per the requirements of Section 5 (2) (a). 

In submissions it was contended on the Respondent’s behalf that:

“There was no sufficient factual content in that email that one could infer was relevant information about “wrongdoing”. It was merely an email with incorrect information about losses that had not occurred and a request for more time.”

The issue of the request for more time was developed in the evidence against a backdrop of what was presented as a previous pattern of missed deadlines and poor performance by the Complainant which preceded the 27th of October 2023 including a failure to deliver the management accounts for the previous period, September 2023 by the agreed date. The email was seen as “just another excuse” for delay due to poor performance and the inability efficiently to discharge the duties and functions of the position of Finance Manager. The Respondent contended that the Complainant was sufficiently familiar with the PDA such that he must have been familiar with its provisions. Even so he did not describe the email as a protected disclosure, nor did he specify the exact nature of legal obligation allegedly being breached or the crime allegedly being committed. 

As to whether the Complainant’s belief was reasonable the Respondent in effect contends that it was not. In this regard Mr. A, himself an accountant, said that he reviewed the accounts himself and came up with a totally different figure. He said that his calculations and workings generated a surplus of just under €3,000. Although he accepted that the books and accounts “required improvement” he also offered the view that “they were not in as bad a state as the Complainant maintained and that a qualified accountant would have been able to sort them out.” Mr. A did not consider the Complainant competent in his role. There are several aspects to this line of evidence.

Informational Content

It is clear from decisions such as that of the Supreme Court in Baranya v. Rosderra Meats [2021] IESC 77 that:

“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”

This is the concept referred as “informational content” at item (iii) of the list enunciated by Ní Raifeartaigh J. in Barrett quoted above.

The Email indicated that the Complainant was reviewing the draft loss, that he was finding postings which needed explanation and correction, and that the accounts needed to be thoroughly cleaned up to “pass audit”. In such circumstances I find that the Email on its face contained sufficient factual content and specificity to pass the “informational content” test if such it can be described. Moreover, the issue is established to my satisfaction without the necessity to have recourse to the presumption in Section 5 (8).

Wrongdoing

Before addressing the issue of reasonable belief, the nature of the wrongdoing which it was contended was referenced in the Email must first be considered. In his submissions the Complainant described the relevant wrongdoing as follows.

Wrongdoing – The Failure to comply with a legal obligation of the Companies Act 2014 and the Misuse of Public funds.

A reasonable belief that there was a failure to maintain proper accounting records, Section 281 Companies Act 2014, Section 47 Charities Act 2009. The maintenance of records is required by law for several reasons, to manage a business responsibly and to monitor the assets, liabilities, donations, rent and expenses promptly. Misappropriations being a relevant failing.

The “Misuse of Public Funds” ground was advanced in detail by the Complainant in later reports, but these were made after the dismissal and there was no direct reference to misuse of public funds in the Email. The ground was not progressed by the Complainant in his evidence. In that evidence the Complainant relied on his belief that the Respondent was not maintaining proper accounting records. He alleged that such conduct could constitute a criminal offence and/or a failure to comply with any legal obligation within the terms of Section 5 (3) (a) and/or (b). The Respondent did not dispute the contention that the failure to keep proper books of account is the type of conduct which is capable of coming within the definition of relevant wrongdoing and in any event, I find that such conduct is so capable as it is captured by the reference in Section 5 (3) to the failure to comply with a legal obligation.

Correctness of the Information

In the present case the Respondent alleged that the information in the Email was incorrect. There are several ways of interpreting this assertion.

In its simplest sense the submission suggests that the information is wrong and that therefore there was no basis for any concerns as to wrongdoing. The terms of Section 5 (4) make it clear that “…it is immaterial whether a relevant wrongdoing occurred, occurs or would occur…”. (emphasis added). In other words, the focus is on the reasonable belief and there is no requirement to prove that wrongdoing had or would occur.  In Darnton v University of Surrey [2003] I.C.R. 615 it was held by the E.A.T. in the U.K. that “reasonable belief must be based on facts as understood by the worker, not as actually found to be the case”. The correctness or otherwise of the information does not of itself deprive the disclosure of the status of a protected disclosure. For this reason, I do not have to make a finding of fact as to whether the information was or was not correct.

For the avoidance of doubt my finding that failure to keep proper accounts can constitute a failure to comply with a legal obligation is not to be construed as a finding that this is what occurred. No such finding is made or needs to be made in a case of this type.

Having found that the correctness or otherwise of the information is not relevant, this still leaves the question as to whether the Complainant could be said to have had a reasonable belief that the facts disclosed tended to show relevant wrongdoing.

Reasonable Belief

The Complainant said in his evidence that he came to the belief that proper books of account were not being maintained by the Respondent based on his own review of the accounts. The text of the email he said, “could not have been clearer”. The was a deficit or loss of €33,000 which was what he described as a “red flag”. The books would not pass audit, and more time was needed to put them in order.

From the point of view of the Respondent, Mr. A, said that he reviewed the accounts himself and came up with a totally different figure. He said that his calculations and workings generated a surplus of just under €3,000. Although he accepted that the books and accounts “required improvement” he also offered the view that they were not in as bad a state as the Complainant maintained and that a qualified accountant would have been able to sort them out. Mr. A said in his evidence that he was concerned for the Complainant’s ability to discharge his functions as Finance Manager.

Notwithstanding the Complainant’s reference to the fact that Mr. A is retired, I deem him suitably qualified to offer in evidence, professional opinions on accounting matters. That said, it is quite clear that Mr. A is not independent as he was and remains associated in one capacity or another with the Respondent. It is also the case that the CEO and Mr. A discussed the Complainant’s Email and the CEO said that Mr. A told him that the €33,000 loss was wrong.  The Complainant is also a qualified accountant and is similarly capable of offering a professional opinion on accounting matters which he too did in his evidence. Neither of these accountants is independent and no independent professional expert evidence was available on the key issue as to whether the state of the accounts was such as to justify a reasonable belief of wrongdoing and as to whether they complied with the requirements to keep proper books of account. The Complainant gave evidence as to his view that they did not and this was the basis of his reasonable belief that wrongdoing had occurred, was occurring or was likely to occur.

Applying the formulation quoted above from paragraph 113 of the Barrett judgment, the test would be: whether a reasonable person would have held the belief (that relevant wrongdoing “occurred, occurs or would occur”) if he/she had the same information as the worker at the time when the communication was made. I would venture to suggest that because of the manner in which the burden of proof is reversed by Section 5 (8) it is arguable that the foregoing test could be cast in the negative  - as follows: whether no reasonable person in possession of the same information as the worker had at the time when the communication was made, would have held the belief that relevant wrongdoing occurred, occurs or would occur. As it transpires either formulation produces a similar outcome.

The Respondent contends that the Complainant had performed poorly prior to sending the Email and that his assessment of the accounts was wrong. The Respondent seeks to link these alleged issues to suggest that the belief formed by the Complainant could not have been reasonable. Even allowing, given that the Complainant was an accountant, for an adaptation of the phrase “reasonable person” to read “reasonable accountant” the only evidence that suggests that a reasonable accountant would not have held the same belief as the Complainant is the opinion of Mr. A. and even he accepted that the accounts “required improvement”.There is no independent expert evidence based on the accounts to support this opinion. In such circumstances I find, on the balance of probabilities that the Respondent has not rebutted the presumption that the Complainant’s belief was reasonable.

Insofar as the allegation that the purpose of the email was the Complainant deflecting potential criticism of his performance, such an argument would have to be deemed an attack on the Complainant’s motivation which, as is made clear by Section 5 (7) is irrelevant to the question of whether or not the disclosure was a Protected Disclosure.

As to the more general challenge that the Complainant was familiar with the legislation and yet did not specify that he was making a protected disclosure, there is no requirement provided for in the act that any communication purporting to be a protected disclosure must be so described. This is recognised at item (vi) on the list set out in Barrett quoted above which also refers to Clarke v CGI Food Services [2020] 3 I.R. 389.

Regarding the evidence that the Respondent did not see or perceive or interpret the email as a protected disclosure there is no provision in the act which requires an employer to be aware that a disclosure is a protected disclosure for it to be deemed such. Where an employer receives a communication of any sort which may potentially be a protected disclosure whether so described or not, that employer is effectively put on enquiry in relation to that communication. An employer might, for instance, interpret a communication as not constituting a protected disclosure or may not even advert to such a possibility. However, there is no provision in the legislation whereby an employer’s inadvertence as to or misinterpretation of the nature of a communication, affords the employer a basis to contend that it is not a protected disclosure.

In conclusion I find that the Respondent has not on the balance of probabilities rebutted the presumption which applies to the Complainant’s disclosure and that accordingly the same a Protected Disclosure. 

Part 4 Unfair Dismissal Findings

This is a claim alleging penalisation pursuant to the PDA which, because the penalisation is in the form of dismissal, is subject to specially adapted provisions of the UDA.

The first requirement has already been satisfied. The Complainant made a protected disclosure in the Email of the 27th of October 2023. The next requirement for the claim to succeed is for the Complainant to establish that  his dismissal comes within the terms of Section 6 (2) (ba) of the UDA as amended by the PDA. it is not governed by the provisions of Section 6 (1) of the UDA. The two provisions are worded differently.

Section 6 (1) deems a dismissal to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal. That wording looks to whether there were substantial grounds justifying the dismissal, but Section 6 (2) (ba) speaks of the dismissal “resulting wholly or mainly from the employee having made a protected disclosure”. There are two distinctions as between the two wordings. The first has already been discussed and that is that Section 6 (1) places the burden of proof onto the employer whereas the burden under Section 6 (2) (ba) is on the employee. The second is that the wording does not use the term substantial grounds justifying the dismissal.

The case of Dougan and Clarke v Lifeline Ambulances Ltd [2018] E.L.R. 210 involved an application for interim relief to the Circuit Court pursuant to Schedule 1 of the PDA. In such cases paragraph 1 of Schedule 1 provides that relief may be granted where “it appears to the Court that it is likely that there are substantial grounds for contending that dismissal results wholly or mainly from the employee having made a protected disclosure.” The test set out in Schedule 1 is preceded by the words “substantial grounds” which words do not appear in Section 6 (2) (ba). That difference aside, the remaining wording is the same as that provided for in Section 6 (2) (ba), namely that it must be shown that the dismissal resulted wholly or mainly from the employee having made a protected disclosure. With regard to that part of the test which also applies in the present case, Judge Comerford in an ex-tempore judgement said [where applicable] as follows:

“It seems to me that the most difficult area for the employee's application of this nature is to deal with the issue of the dismissal resulting wholly or mainly form the making of the disclosure. The dismissal has to result wholly or mainly from that. It is not enough that the protected disclosure contributed to the dismissal or was a factor in the employer making the decision. It has to meet that fairly heavy test. This protection will not apply unless the dismissal results wholly or mainly from it. … It is not enough that it is just a factor or an influence or…whether it was a consequence of the protected disclosure, that wouldn't be enough. It has to result wholly or mainly from that protected disclosure.”

While there is, what is described above as a fairly heavy test to be applied to the “wholly and mainly” causation of the dismissal, the observations made by Ní Raifeartaigh J. in  Barrett v. Commissioner of An Garda Síochána and Minister for Justice [2023] E.L.R 165 are also of relevance. In the list set out at at paragraph 114 of Judgement the following statement is made:

“(x) A court should be alive both to the possibility that actions by the employer which ostensibly appear legitimate on their face may in reality be connected to a protected disclosure, and the possibility that an employer is taking bona fide steps in respect of an employee who is making unfounded allegations of a connection between the two events.”

The second important distinction as between the wordings respectively of Section 6 (1) on the one hand and Section (2) (ba) on the other relates to a difference between the primary tests that must be applied under each provision. An enquiry concerning substantial grounds necessitates that the ground or grounds constituting the reason for the dismissal are first identified and thereafter all of the circumstances are considered to determine whether substantial grounds existed so to justify the dismissal. It is well established that a dismissal governed by this section must be justified by the employer both substantively and procedurally.  The reason/reasons for the dismissal is/are at the centre of the enquiry as is the issue of the compliance or otherwise with fair procedures. By contrast, an enquiry under Section 6 (2) (ba) is focused more sharply on cause and effect as between the protected disclosure and the dismissal. The question to be determined is whether the dismissal resulted from the protected disclosure. That issue centres on causation rather than on the existence or otherwise of substantial grounds.

Arising from the nature of the essential enquiry being centred on the Complainant’s burden of proof to establish causation rather than on any burden falling on the Respondents to establishing substantial grounds, it is necessary to place two related issues in context; the lack of adherence to fair procedures and the probation clause.

The Complainant alleged that he was not afforded fair procedures, and the Respondent refused to allow an appeal against the decision.

The Respondent’s primary defence was that the Email was not a Protected Disclosure and this being so, the Complainant had insufficient service to come within the protection of the UDA and the Respondent was entitled to terminate his contract in line with the Probation clause therein. The Complainant had less than twelve months’ service and his contract of employment specifically provided for dismissal during probation. 

As to the probation clause, the reliance on it by the Respondent explains (rather than excuses) why fair procedures including an appeal against the dismissal were not afforded to the Complainant. However, the ability of an employer to rely on a probation clause is tied to the fact that the Complainant had less than twelve months’ service. Probation-based dismissals are excluded from the UDA by Section 3 of but only where the period of probation in the written contract does not exceed one year. Also excluded by Section 2 (1) (a) are cases where the employee has less than twelve months’ service. However, where a finding pursuant to Section 6 (2) (ba) is made, that the dismissal resulted wholly or mainly from the making by the employee of a protected disclosure, Sections 2 (1) (a) and Section 3 are both disapplied (by Section 6 2D UDA). Accordingly, neither a lack of service nor the reliance on a probation clause are issues which are relevant to the enquiry as to whether the terms of Section 6 (2) (ba) are satisfied.  If those terms are satisfied, then Sections 2(1) (a) and Section 3 will not apply - and vice versa. Thus, the enquiry as to whether the terms of Section 6 (2) (ba) are met must come first, as if it were otherwise, that would be to ‘put the cart before the horse’.

I turn next to the relevance of a breach of fair procedures. The Respondent did not and could not have made any credible argument that procedures were followed in this dismissal. The CEO said that he tried to contact the Complainant without success, yet the fact remains that the Complainant was dismissed without a disciplinary process and while he was on (albeit uncertified) sick leave. In its written submissions it was contended that “The Respondent attempted to make contact with [the Complainant] on a number of occasions such that the termination could be communicated to him but with no success”.  The words emphasised suggest that any attempt to contact the Complainant was not to engage with him but merely to let him know that he had been dismissed. The Complainant was not afforded an appeal following the dismissal. He was informed that the reason for this was that his dismissal was “during [his] probationary period” and that “Unfortunately there [was] no such right of appeal afforded”. There can be no doubt that fair procedures were not followed when the Complainant was dismissed and it is also clear that the Respondent took the view that the Complainant’s dismissal during probation did not require adherence to fair procedures at all. The fact is that there was a breach of fair procedures, and the next question is whether and to what extent this issue is of relevance to the question of causation.

Where an unfair dismissal claim arises to which the usual provisions of Section 6 (1) apply, the procedures leading to dismissal are an essential component of the burden of proof on an employer to establish substantial grounds. In such a claim a serious procedural flaw can and usually does (with very limited exceptions) defeat any claim by the employer of justification on substantial grounds. However, in a case such as the present, which is governed by Section 6 (2) (ba), even though the Complainant has established that fair procedures were not followed, there is no presumption that the dismissal was unfair, and the applicable test is based on causation and not whether there were substantial grounds. I conclude that a breach of fair procedures where it is established does not of itself carry the same consequences for an employer in claim regulated by Section 6 (2) as it would if it arose in the context of a claim under Section 6 (1) but this is not to say that the issue is entirely irrelevant. It can and must be considered when assessing causation as between the making of the protected disclosure and the dismissal. In that regard the facts suggest that the Respondent may have thought that it had the right to do what it did or alternatively it may suggest something entirely different, which is that the device of a dismissal during probation was used as means to effect a swift removal of the Complainant with the minimum of further engagement. In this regard I am mindful of the need, as pointed out in Barrett for decision-makers to be alive to the “possibility that actions by the employer which ostensibly appear legitimate on their face may in reality be connected to a protected disclosure” and on the other hand as to the possibility that the employer took bona fide steps and the connection contended for by the Complainant as between those actions and the protected disclosure is unfounded.

Leaving aside for the moment, the issue of the probation clause and the issue of fair procedures and turning to the general issue of causation, the Complainant’s position was that having raised “red flags” in the Email, he could have sorted the problems out on his own, and that if he had been allowed to do so instead of being sacked, he would have had the accounts ready by the end of January 2024 to go out to the Auditors in February 2024 and to be put before the board at the Annual General Meeting in March 2024. Later in his evidence when questioning Mr. A, the Complainant said that when he was dismissed, he was one week away from getting everything in order.

In effect the Complainant relied on the fact that the sequence of events spoke for itself and supported his contention that the CEO dismissed the Complainant in retaliation for the issues which he had raised the previous Friday the 27th of October 2023 in the Email.

As to this argument the Respondent submitted as follows:

“In the event that the Complainant was [sic. is] found to have made a Protected Disclosure the Respondent argued [sic. - argues] that the Complainant was dismissed on “justified grounds” and there was no nexus between an alleged disclosure and his termination. There were clear performance issues. The Complainant was unable to meet deadlines, conducted himself inappropriately with service users and members of the Board, refused to comply with the Garda Vetting process in a timely manner and then submitted two different dates of birth. He demonstrated a lack of the competence level required to fulfil the responsibilities of the role. He had already had meetings with the CEO to discuss performance gaps which were followed up by email. His ongoing performance simply did not support the continuance of his employment…

At a Board Meeting on November 1st, 2023, the CEO advised that the “competence of the Finance Manager being a major concern”. The minutes of the Board meeting go on to outline that there was a HR discussion on the performance of the Complainant. The minutes reflect that the CEO outlined that it became apparent since the Financial Consultant and the Finance Assistant left that the Finance Manager was not capable of completing the day-to-day tasks. There was also evidence that the Complainant was not forthright in terms of completing his pre-employment documentation and Garda Vetting application”. There appeared to be discrepancies in both his name and date of birth which caused concern. It was decided, by the Board, that it was in the best interests of the Charity to conclude the Complainant’s employment given he was still on probation and there were so many evident performance issues

The submission continued:

“The Complainant was in breach of the terms of his employment contract. There is uncertainty about his date of birth in contravention of the express clauses of his employment agreement. Additionally, his refusal to comply fully with the Garda Vetting process would vitiate the contract regardless of his position on whether it was “essential” or not.

…He cites the lack of appeal as a breach of his right to fair procedures. The Complainant was on probation and his contract expressly facilitates the termination. The Respondent attempted to make contact with him on a number of occasions such that the termination could be communicated to him but with no success. Hence a letter of termination issued.”

In this regard the Respondent raised several reasons for the Complainant’s dismissal none of which, it was contended, were connected in any way with the protected disclosure.

In the present case where the essential issue for determination  is causation rather than the existence or otherwise of substantial grounds I will consider the evidence as to the reason or reasons for the dismissal but it remains the case that the existence of legitimate reasons if established, does not by itself defeat the Complainant’s assertion that the facts strongly suggest a connection as between the dismissal and the making of the protected disclosure. I must also seek to strike a balance, as recommended in Barrett (and other cases) and discussed above, as between the possibilities of legitimate means being deployed to achieve an unlawful end versus an unfounded connection as between the means deployed and the protected disclosure.

Evidence of the CEO Regarding Information Given to the Board

At the Board Meeting on the 1st of November 2023 the CEO raised concerns about the Complainant’s performance, his inappropriate contact with service users, having his feet up on his desk and the Garda Vetting issue. The CEO wanted to inform the Board of his plan to terminate the Complainant’s employment. The CEO said that the Complainant’s employment was terminated based on poor performance during the probationary period. The CEO did not consider the email alleged to be a protected disclosure as a notification of wrongdoing and the only aspect of the email that caused the CEO concern was the fact that there was a delay with the management accounts. Although unsure, the CEO “wouldn’t have been surprised” if the email had been shared with the board. The CEO and Mr. A did discuss the email. Mr. A, who was himself an accountant and was familiar with the accounts, said that the €33,000 loss was wrong.

The CEO had what he described in his evidence as “a plan” to terminate the Complainant’s employment. The CEO addressed the Board. After a lengthy discussion the Board agreed to conclude the Complainant’s contract at the recommendation of the CEO. The CEO said that he raised concerns about the Complainant’s performance, his inappropriate contact with service users, having his feet up on his desk and the Garda Vetting issue.

Looking at the four issues of concern that the CEO said he raised with the Board I will deal with them as they appear in the minute of the Board meeting and the dismissal letter.

Minutes of The Board Meeting on the 1st of November 2023 were submitted. The CEO was present as was Mr. A who was recorded as a “Guest”. However the minutes state that he “will step down”.

The segment of the minutes as regards the decision to dismiss the Complainant reads as follows:

“[The CEO] advised the Board that the competence of the Finance Manager that officially started with [the Respondent] on the 1st of September 2023 is a major concern right now.

It has become apparent since the Financial Controller and the Finance Assistant left that the Finance Manager was not capable of completing the day to day tasks. There was also evidence that he was not forthright and honest in terms of completing his pre-employment documentation and Garda Vetting application.

After a lengthy discussion by the Board on this matter, at the recommendation of the CEO – it was agreed to conclude the Finance Managers employment with [the Respondent] during his probationary period”

The minute of the Board meeting only makes reference to a “lengthy discussion by the Board” and it does not provide any detail as to exactly what information was given to the Board nor as to the content of the “lengthy discussion”. There is no mention of the Complainant’s Email of the 27th of October 2023. The CEO’s evidence was that he “wouldn’t have been surprised” if the email had been shared with the board.  The only other witness called by the Respondent was Mr. A who, although he was present at the meeting, did not give evidence about what was said. In the absence of further evidence as to the detail of the discussion I must attempt to assess what happened as best I can, from the evidence available such as it is.

The Dismissal Letter

Following the Board Meeting on the 1st of November 2023 the Complainant was dismissed the following day by letter which was dated and received by the Complainant on the 2nd of November 2023. The full text of the letter is quoted in the evidence section above. However for the present purposes the reason for the dismissal is stated as follows:

“I would have preferred to meet with you in person, however you are not answering my calls and texts; I note we agreed and arranged to speak today. I refer to your contract of employment with [The Respondent]  which commenced on 1st September 2023.

As you are aware from discussions and at our meeting on 22nd September 2023, and October 10, 2023, where I have had reason to bring to your attention on numerous occasions since you commenced employment, concerns regarding your work performance; in particular issues relating to you completing essential tasks on time which have placed the Finance department at risk...

               [Probation Clause in Contract Quoted in Full]

…I am writing to confirm that due to the issues outlined, [The Respondent] is concluding your contract with immediate effect. As stipulated within your contract you are entitled to one weeks' notice.”

The Garda Vetting Issue

This issue is referenced in the Minute of the Board meeting with the words: “evidence that the Complainant was not forthright in terms of completing his pre-employment documentation and Garda Vetting application”  

The above quotation appears to reflect the relevant part of the briefing which the Board received. It was relied on in the Respondent’s written submission where it was contended that there was “uncertainty about” the Complainant’s date of birth and it was also contended that he refused “to comply fully with the Garda Vetting process”. However, there is no direct specific reference to Garda Vetting in the dismissal letter. That letter does mention “discussions and at our meeting on 22nd September 2023, and October 10, 2023”. The words “numerous occasions” are then used, followed bya reference to “completing essential tasks on time ” In his evidence, the CEO dealt only with the fact that the Complainant had to be reminded to submit his Garda Vetting Form. He gave no evidence regarding the date of birth issue, and he did not clarify how the Complainant had refused to comply fully with the Garda Vetting Process.

The Complainant said that he did submit a form on the 23rd of October 2023, and it was returned by the Gardai who advised that the Complainant “did not require Garda Vetting by legislation”. As to the delay in submitting the form he said he was bogged down in dealing with backlog and he was very busy. He accepted that it was a term of his contract, but he queried why he had been allowed on site without Garda Vetting.

The Respondent dd not contest the evidence that the Complainant submitted a Garda Vetting Form on 23rd of October 2023 nor was it contested that the Gardai advised that the Complainant “did not require Garda Vetting by legislation”.  The point made by the Respondent was that the relevant form was only submitted when the Complainant was reminded about it in September 2023. Thus, the only issue in relation to Garda Vetting which could reasonably have been of concern to the Respondent’s Board, when it met on the 1st of November 2023 and made the decision to dismiss the Complainant, was that the Garda Vetting application had not been completed sooner and the Complainant had to be prompted to submit it. This fact calls into question why the issue was being raised in the context of dismissing the Complainant at a time when the issue was no longer live. The other issue, which was raised by the Complainant is why he was allowed on site at all if he had not been Garda Vetted. Both points call into question what information the Board was given in the briefing referred to in the minutes. More importantly they raise the question as to why these issues were being put before the Board two working days after the Email of the 27th of October 2023 and not as soon as they arose.

The Alleged Inappropriate Contact with Service Users

These allegations were included in the Respondent’s submissions, evidence regarding them was given by the CEO and the issue was put to the Complainant in his evidence. However, no discussion of the issue is recorded in the minutes of the Board Meeting where the decision to dismiss was taken on the recommendation of the CEO. In addition to the absence of any record of the issues being briefed to or discussed by the Board, there is no reference to them in the dismissal letter. The first time the issues were raised at all was in the Respondent’s submission, delivered for the purposes of defending the present claim, when the issues were put thus:

‘The Complainant had behaved worrying [sic. worryingly] and inappropriately during his time at the” Respondent.’

And

‘The Complainant’s “over friendliness” with some clients of the Refuge and the Chair of the Board were matters of grave concern.’

Regarding how the issue had been dealt with before the dismissal, the CEO said in evidence that the Complainant engaged socially on numerous occasions with service users and their children. There were Friday coffee meetings for victims to get together which were facilitated by professional care staff. The CEO only attended by invitation and did so twice. The CEO explained to the Complainant that he had to be careful regarding his boundaries when approaching and interacting with service users and that interacting with them was not appropriate since his responsibilities related only to finance. When he explained this to the Complainant which he did on at least one occasion, the Complainant said that he understood but he didn’t change his interactions. The CEO said that the Complainant disobeyed a direct reasonable instruction.

In his evidence, the Complainant denied that he had ever been spoken to about the issue. He explained that he was in the habit of attending coffee mornings with the service users but whenever he did so he was always accompanied by another professional member of staff. He said that the CEO also attended in his presence on at least one occasion. The CEO agreed that he did also attend but said that he only did so by invitation.

When the issue was tested in evidence, I was left with the impression that it was far less serious than was suggested in the submissions. If the Complainant’s attendance at these gatherings was as unwelcome and as “worrying” as the Respondent contended, one would have expected a serious written rebuke, a direct instruction immediately to cease and desist or even a dismissal as soon as the issues were identified. The CEO did say that he mentioned the issue verbally to the Complainant but in the face of the Complainant’s outright denial that he ever did so and in the absence of any written corroboration of the issue, whether by warning, instruction or in the dismissal letter, I find that even if the issue was discussed with the Complainant, it was not included in the dismissal letter and its advancement as a legitimate reason to dismiss the Complainant lacks credibility. Moreover, the fact that it was advanced as a serious issue which was not tackled when it allegedly arose draws attention to the timing of the decision to dismiss which was taken at the board meeting a mere two working days after the Email of the 27th of October 2023. 

Performance Issues

This description is intended to capture the two other issues which the CEO said were raised as concerns to the Board at the meeting on the 1st of November 2023. I deem the reference to the Complainant having his feet up on his desk to be a component or subset of a more general concern regarding “performance issues”.

These issues are referenced in the minute of the board meeting and in the dismissal letter. The Board minutes state that it was “apparent …that the Finance Manager was not capable of completing the day to day tasks”.  

The dismissal letter mentions two meetings in September and October 2023 and numerous occasions where the CEO had had reason to bring to the Complainant’s attention concerns regarding his work performance.

The CEO gave detailed evidence as to his view of the Complainant’s performance and how he attempted to tackle the issues as he saw then prior to the dismissal.

Specific reference was made, and detailed evidence was given about a meeting between the CEO and the Complainant in September 2023.

The content of this meeting was accepted as being accurately recorded in an email from the CEO to the Complainant dated the 21st of September 2023 (text reproduced in Evidence Section above). This puts the date of the meeting as the 20th of September and not in fact the 22nd of September 2023 as was incorrectly recorded in the dismissal letter or on the 21st of September 2023 as stated in the Respondent’s submissions. In any event the Respondent relied on this meeting as evidence that significant performance issues were raised with the Complainant by the Respondent just over a month before the dismissal.

The email listed for the Complainant tasks requiring his attention. In evidence the CEO said that in this meeting he gave the Complainant a direct management order. There is a mismatch as between this description and the agreed record of the meeting. The latter speaks of tasks requiring attention and the word “order” is not used. Moreover, even though tasks are set and deadlines for their completion are imposed there is no reference to consequences in the event of failure to complete the tasks, either by the deadline or at all. The CEO said that he was “coaching” the Complainant in this meeting. He did not describe the meeting as disciplinary in nature.

Evidence was given by the CEO of continuing dialogues, and a specific reference was made in the dismissal letter to another meeting on the 10th of October 2023. No record of this meeting was offered by the Respondent, and no specific evidence was given about it by the CEO.

The Complainant said that he accepted that only two ‘one-to one meetings’ took place, only one of which was documented in any way, which was the one on the 20th of September 2023 mentioned in the email of the 21st of September 2023. The CEO said that many dialogues had taken place, and the Complainant challenged this, contending that the CEO was rarely in the office being based primarily in another county.

The present enquiry does not require a finding of fact as to whether the Complainant was guilty of poor performance as alleged. However, I find that it is probable that whether justified or not, the Respondent’s CEO did have concerns regarding the Complainant’s performance of his duties and that these concerns were discussed by the CEO with the Complainant on at least one occasion. However, from the only written record of any discussions it is not apparent that the concerns were so great, as of September 2023 to have merited a more stern or formal approach at that time. The CEO described the meeting as “coaching” and there is no threat of consequences if the list of items is not addressed. In short, this email does not give the impression that the Complainant’s continued employment was under threat at that time. As regards the other alleged numerous verbal discussions, these are not recorded, and the CEO did not provide any dates for them. The dismissal letter mentions a meeting in October 2023 but there is no record of this either. This calls into question what occurred to bring the situation from being one of ongoing concern requiring coaching to one where the employment was terminated without a warning or a discussion of any sort. Insofar as the CEO had ongoing concerns regarding the Complainant’s performance there was nothing to prevent further monitoring of that situation and the same is also true of the other issues. The question is what changed in the relatively short period between the 20th of September 2023 and the 2nd of November 2023 such as to merit the Complainant’s dismissal. The answer would appear to be rooted in the events of the 27th of October 2023 starting with the Complainant’s Email which I have already found was a protected disclosure. 

The Respondent’s position as to how the Email was interpreted was referred to a number of times.

In submissions the Respondent contended that the Email was interpreted as being yet another example of the Complainant making excuses for his failure to complete tasks on time.

In evidence the CEO said that whenever an issue or query was discussed with the Complainant, he always gave a story or excuse which was difficult to understand.

The CEO knew that that the Complainant wasn’t happy about Mr. A helping and that there was a delay with the management accounts and he thought there might be a corelation between these issues and the Complainant being on sick leave.

The CEO did not consider the email to be a notification of wrongdoing and the only aspect of the email that caused him concern was the fact that there was a delay with the management accounts.

It was put to Complainant that in this email he was just making excuses for being unable to deal with his deadlines. He was asked why he did not specify relevant wrongdoings in his email rather than just looking for more time.

Mr. A did not believe that the Complainant in his email had raised a protected disclosure. He was concerned for the Complainant’s ability to discharge his functions as Finance Manager. He was unable to get his job done unless he was sufficiently managed. A person at his level should not have required such a level of management.

I find on the balance of probabilities that the CEO had a strong adverse reaction to the Complainant’s Email sent at 11:07 am on the 27th of October 2023 and that the situation escalated further throughout that day when further issues were raised regarding the possibility of Mr. A having a conflict of interest. Those issues arose directly from the issues raised in the Email at 11:07 am. The situation then became worse still when the Complainant called in sick after the long weekend, on Tuesday the 31st of October 2023, and the CEO was frustrated when he could not get to have a detailed conversation with the Complainant.  By this stage it is apparent that his patience was exhausted, and he took decisive action. The next day he made a recommendation to the Board and the day after that, the Complainant was dismissed.

Prior to the 27th of October 2023 the CEO said that he had concerns regarding the Complainant’s performance but there was no evidence of any imminent prospect of the Complainant’s employment being terminated before that date. However, within a few days of sending the Email he was dismissed. It is impossible for me to determine exactly briefing or information was given to the Board or which of the reasons offered by the CEO secured the sanction for the dismissal which he recommended.

The evidence would tend to suggest that the most likely catalyst for the CEO’s decisive action was the fact that it became clear when the Email was received that there would be a delay with the management accounts since this was, as he said, the only aspect of it which caused him concern. It is also however possible that the CEO, perhaps Mr. A and possibly the Board (if it was properly briefed about the Email which is uncertain) knew or ought to have known that the Email was or could be a protected disclosure. If that is so then the dismissal, based as it was on the probation clause and  ruling out for that reason the necessity of any further substantive interaction with the Complainant let alone affording him due process could constitute, as was put by  Ní Raifeartaigh J. in  Barrett :  “actions by the employer which ostensibly appear legitimate on their face [but which]  may in reality be connected to a protected disclosure”.

It is impossible for me to ascertain whether, as contended, the Email was not interpreted as a protected disclosure or whether the possibility of it so being was considered but dismissed. However, I do not have to make a finding on this issue because, regardless of how it was interpreted, the fact remains that the Email started a chain reaction which led directly to the Complainant’s dismissal. I have found that this Email was a protected disclosure, and I have also stated along with that finding that there is no provision in the PDA whereby the interpretation, misinterpretation or inadvertence as to the nature of a communication by an employer affects or can affect the issue as to whether that communication is a protected disclosure. The same applies to the issue of whether a dismissal can result wholly or mainly from a protected disclosure as the individual interpretation of the communication does not affect the objective assessment of causation.  In all of the circumstances I find on the balance of probabilities that the making by the Complainant of a protected disclosure (as so found) in the Email sent at 11:07 am on the 27th of October 2023 does satisfy the required test such that the Complainant’s dismissal resulted wholly or mainly from the making by him of a protected disclosure.

 Accordingly, for all of the reasons stated above I find that the Complainant was unfairly dismissed.

Part 5 - Redress for Unfair Dismissal

Statutory Provisions and Amendments

The Redress Orders which can be made under the Unfair Dismissals Act 1977 are set out in Section 7 (1). The options are Reinstatement, Reengagement or Compensation. 

As to the method of assessment of compensation in a case which falls within Section 6 (2) (ba) regard must be had to the amendments made to the UDA by Section 11 of the PDA. There are two such amendments; the first increases the maximum award and the second adds an additional discretionary provision dealing with the motivation of the dismissed employee in making his/her protected disclosure.

Increase to Maximum Compensation Award Section 7 (1A)

Section 11 of the PDA amends Section 7 (1) of the UDA as follows:

(d) in section 7 by inserting the following subsection after subsection (1):

“(1A) In relation to a case falling within section 6(2) (ba) the reference in subsection (1)(c)(i) to 104 weeks has effect as if it were a reference to 260 weeks….”;

The maximum compensation jurisdiction applicable “to a case falling within section 6(2) (ba)” is thus increased to 260 weeks. However, the main wording in Section 7 (1) (c) (i) still stands.

The present case is “a case falling within section 6(2) (ba)” and thus, for the purposes of this case the operative wording of Section 7 (1) (c) (i) - where relevant and with the substituted words inserted and emphasised - is as follows: 

“(c) (i) if the employee incurred any financial loss attributable to the dismissal [In relation to a case falling within section 6(2) (ba)]  payment to him by the employer of such compensation in respect of the loss [not exceeding in amount 260 weeks] remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17 of this Act) as is just and equitable having regard to all the circumstances,…”

Compensation must be calculated on the basis of “financial loss attributable to the dismissal” which is the same wording which applies to any other unfair dismissal howsoever caused and regardless of which provisions of the UDA govern that dismissal. Accordingly, the compensation in the present case must similarly follow Section 7 (2) and 7 (2A) and the well-established practices regarding the assessment of compensation for unfair dismissal which may be summarised as follows:

1. The actual loss attributable to the dismissal must be calculated [albeit without deduction in respect of (a) payments received pursuant to the Social Welfare Acts, 1981 to 1993, in respect of any period following the dismissal concerned, or (b) under the Income Tax Acts arising by reason of the dismissal  - Section 7 (2A)]. Loss may include loss to date and where applicable, estimated prospective or future loss.
2. Where applicable, mitigation of loss or the failure to mitigate the loss must be considered.
3. Where applicable, conduct contributing to the loss by either party must be considered such that compensation may be decreased if the employee contributes or increased if the employer contributes.
4. Regard must be had where applicable to the extent of the failure by the employer to comply with Section 14, with trade union agreements, with custom and practice or with applicable codes of practice in relation to the procedures applicable to and leading to the dismissal. 
5. Where applicable the conduct by the employee which contributed to the dismissal must be considered.
6. Where applicable to the case Section 7 (2B) must be considered – as discussed below.

Additional Provision Regarding Motivation – Section 7 (2B)

Where a case concerns a dismissal which “results wholly or mainly from the employee having made a protected disclosure” - a similar wording to Section 6 (2) (ba) - an additional, albeit in this case discretionary, basis for adjustment of the compensation award was introduced by Section 11 (e) of the PDA which adds and additional subsection to the UDA. As a result, Section 7 (2B) of the UDA (as amended) reads:  

“(2B) Where—

(a) the dismissal of an employee results wholly or mainly from the employee having made a protected disclosure, and

(b) the investigation of the relevant wrongdoing concerned was not the sole or main motivation for making the disclosure, the amount of compensation that is just and equitable may be up to 25 per cent less than the amount that it would otherwise be.”.

This additional provision which affords an adjudicator a discretion to reduce compensation, does not alter the basis of assessment of compensation which remains governed by Section 7 (1) (c) (i) – albeit subject to the increased maximum compensation jurisdiction – and thus compensation is still assessed on the basis of losses “attributable to the dismissal”. 

The above provisions indicate the legislature when making provision for an unfair dismissal resulting wholly or mainly from the making of a protected disclosure attached specific conditions for the availability of the remedy and attached limitations to it. This is not the case as regards Penalisation for making protected disclosures under Section 12 (1) and Schedule 2. In addition to the availability in that type of case, to a reversed onus of proof [Section 12 (7C)], another important difference is the fact that compensation under Section 12 (1) as per  Schedule 2 paragraph (1) (c) will be:  “such amount (if any) as the adjudication officer considers just and equitable having regard to all the circumstances” which wording is not linked directly to “loss attributable” which applies to claims for unfair dismissal.

Evidence as to Losses

The Complainant’s remuneration with the Respondent was agreed in the sum of €70,373.16 per annum or €1.353.33 gross per week.

Following his dismissal on the 2nd of November 2023 the Complainant said that he immediately set about sourcing suitable alternative employment. He referred to evidence of applications which he made from November to April 2023. He claimed full losses for this period.

The Complainant secured his first alternative employment on the 15th of April 2044. His remuneration in this employment was less than that which he earned with the Respondent. The differential loss was in the sum of €391.79 per week. This employment ended on the 24th of July 2024 due to the position becoming redundant. The Complainant was the unemployed for a further period, during which time he incurred full losses. He found his present employment on the 20th of January 2025 but sustained a further differential loss as between that employment and his employment with the Respondent in the sum of € 337.27 per week from the 20th of January 2025 to the date of the adjudication hearing which concluded on the 25th of March 2025. At the hearing the Complainant confirmed that from April 2025 onwards his remuneration would be such as to extinguish any further future differential loss.   

In summary I have broken down the losses by period and nature of loss as follows:

Unemployed 2nd of November to 15th of April 2023

Incurring full Losses @ 1353.33 per week for 23 weeks                                                 € 31,126.59

First Alternative Employment from 15th of April to 24th of July 2024

Incurring earnings differential 391.79 for 15 weeks                                                        €   5,876.85

Unemployed from 24th July 2024 to 20th January 2025

Full losses @1,353.33 for 26 weeks                                                                                     €35,186.58

Present employment 20th January 2025 to end March 2025

Incurring earnings differential 337.27 for 9 weeks                                                          €   3,035.43

Nil Differential from April 2025 onwards                              

Prospective Future Loss                                                                                           Nil

Total Claimed Losses                                                                                                               €75,225.45

On Page 2 of his submissions the Complainant stated:

“I am seeking adjudication under the Protective Disclosures Act 2014 as amended by the Protective Disclosures (Amendment) Act 2022, claiming detrimental treatment and penalisation under the Unfair Dismissals Act 1977 revised, seeking the increased five years compensation.

Adjudication under Statutory Instrument 146-2000, my constitutional right to an appeal, procedural justice in achieving fair and natural justice. The principles of natural justice fair procedures allows an opportunity to avail of representation, a right to a fair and impartial determination of the issues under investigation, my response, representations made by me or on my behalf and all other appropriate evidence factors and circumstances, my dismissal being procedurally unfair. I was denied fair procedures…

I am also seeking compensation for a breach of fair procedures to be paid from date of dismissal to the date of a full hearing.”

However, at page 14 of his submission the Complainant stated:  

“I seek reinstatement of my post”

Regarding Motivation the Complainant submitted at Appendix 7 to his submission: 

“There is no explicit requirement under the 2014 Act that a disclosure be made in good faith in order for a worker to attract the protections contained therein. The motivation for making the disclosure is deemed to be irrelevant to whether or not it is a protected disclosure, (Protected Disclosures Act 2014, s 5(7)).”

I would note that as framed, the above proposition is correct. However motivation can still be considered in the context of a dismissal falling within Section 6 (2) (ba) when assessing compensation pursuant to Section 7 (2B) -  as discussed below.

The Respondent contended that the Complainant had failed to adduce any or any sufficient proof of his efforts to mitigate his loss.

The Respondent further contended that the Complainant’s employment on DATE had been terminated due to his incompetence. The Complainant denied and took exception to this allegation and insisted that this employment was lost due to a redundancy situation.

In the present case although the Complainant in his submissions sought reinstatement, I do not see this as a workable or practical remedy given the nature of the allegations made on each side. Moreover, it is also the case that the Complainant found other employment and although this came to an end he was, at the date of the adjudication hearing, due shortly thereafter to take up employment at a higher rate of remuneration than he earned with the Respondent. I deem the compensation to be the most appropriate and practical form of redress in the circumstances of the present case.

In assessing Compensation I have considered which if any of the factors set out in Section 7 (2) and 7 (2A) are applicable. Section 7 (2) states that regard “shall” be had to those factors and they are thus mandatory where applicable. Of these factors the Respondent submitted principally that the burden of proof was on the Complainant to adduce evidence as to his attempts to mitigate his losses and that he had failed to discharge this burden.

The Complainant relied on a document which he submitted in the course of the hearing which he contended recorded his efforts to seek alternative employment by way of mitigation of his alleged losses. The Respondent made the point that the burden of proving losses remains on the Complainant and that the Complainant should have furnished his evidence much earlier, at the very latest, when he was delivering his updated submissions. The Respondent also submitted that the evidence submitted did not constitute sufficient evidence of the Complainant’s efforts to source alternative employment.

I have considered such documentation as the Complainant did furnish. It is an electronic file running to eight pages.

The first three pages contains several messages which have been ‘cut and pasted’ into the file. The first one is a message to the Complainant which refers to an available vacancy “Posted 04 March 2024”. There then follows what appear to be six communications to the Complainant which have also been cut and pasted from other documents. The communications acknowledge receipt of applications from the Complainant. In some but not all of the messages, the sender is identified. However, with the exception of the date of the posting in the first message, none of the other messages on the first three pages of the file are dated. The file appears to follow a date sequence as the next two pages appear to relate to a later period; September and October of 2024. Therefore, doing the best that I can to interpret the document, I am taking it that the first three pages relate to the period following dismissal up to the time when the First Alternative Employment was secured in April 2024.

The next two pages of the file contain what appear to be extracts from the Complainant’s email ‘sent items’. The pasted text reflects, in the main, emails sent with applications to Irish Jobs and also to a smaller number of other addressees. The dates are in American format month/date/year. For September 2024 messages were sent on the 9th (two messages), 11th, 13th, 14th, 15th, 16th, 17th, 23rd (seven messages), 24th (two messages), 26th (two messages), and 28th. In October 2024 messages were sent on the 3rd (three messages), 9th (two messages), 11th and 13th. There then appears a list of entities numbering seven in total. Presumably these are entities to which applications were sent but no dates or any other details are provided.

The last two pages of the file contain correspondence from the employer regarding the cessation of the First Alternative Employment consisting of a positive reference dated the 1st of August 2024 stating that:

“[The Complainant] was employed by [that employer] from 15 April 2024 to 04 July 2024. He was recruited as 'Finance Manager' to provide support for the Head of Finance. [He] performed his duties in a competent and diligent manner”

A further letter from the same entity dated the 5th of July 2024 states: 

“Further to our meeting on Thursday last 04 July, I am writing to confirm that your contract …is being terminated due to financial pressures and the requirement to reduce costs. As I explained, you were a senior hire and a very recent hire and we are required to demonstrate that cuts and restructuring made at the front line are mirrored with a similar approach in our HQ.

It is regrettable that we need to make this change so soon after you joined. You had settled well and seemed to be enjoying your work. I am pleased to advise that we will accede to your request for one (1) months' pay and that this will include your notice period and any accrued leave accrued. Notwithstanding that you will not be required to work notice your employment will formally end on Friday 02 August 2024.

On my own behalf and on behalf of the Head of Finance I want to thank you for your contribution in your short time with us and to wish you well.”

The foregoing is the extent of the documentary evidence which the Complainant provided. In his oral evidence he said that he spent time every day when unemployed looking for work and applying for suitable vacancies.

Contributory Conduct

I have considered whether the issue of contributory conduct on the part of the Complainant is a factor to be considered. Although this was not specifically argued by the Respondent, it is implicit in the defence that the Respondent mounted that the Complainant’s performance on the Respondent’s case was very much in issue. Moreover, other issues relating to the Complainant’s contractual obligations in relation to Garda Vetting and his interaction with service users was also raised as contributing to the decision to dismiss him.  I have already found that the dismissal of the Complainant resulted wholly and mainly from the making by him of a protected disclosure. Even though such a dismissal falls into the category of a ‘deemed dismissal’, sometimes referred to as an ‘automatic unfair dismissal’ and even though this type of dismissal cannot be justified if found to have occurred, my interpretation of Section 7 is that its provisions - where applicable - can and must still be applied in assessing compensation in any dismissal howsoever caused or designated. I conclude that there is no provision in the UDA which excludes the mandatory considerations listed in Section 7 (2) and (2A) even where the dismissal is a deemed dismissal pursuant to Section 6 (2). All of that said, I find that the evidence of poor performance and indeed other issues as presented by the Respondent establishes only that the Respondent had these concerns and acted upon them. As is evident from the submissions, the Respondent took the view that it had a contractual entitlement to terminate the Complainant’s contract effectively without showing cause and beyond the protection of the UDA. This probably explains why none of the issues (relating to performance and other matters) which were exercising the Respondent were never formally put to the Complainant, why he was never warned that his employment was in jeopardy, why no disciplinary procedures were followed when the Complainant was dismissed and why no appeal was afforded to him. However, in the light of the finding which I have made that the Complainant as a matter of law was unfairly dismissed and that therefore no reliance can be placed on a dismissal during probation without cause, I find that there are insufficient grounds to reduce the compensation award to the Complainant based on contributory conduct.

Motivation

I have considered whether to apply the discretionary deduction provided for by Section 7 (2B) in cases (such as the present) where the dismissal results wholly or mainly from the making of a protected disclosure but where the investigation of the relevant wrongdoing concerned was not the sole or main motivation for making the disclosure.  

Although this provision was not specifically referred to by the Respondent, the Respondent submitted and it was put to the Complainant, that the real and only reason for writing his email of the 27th of October 2023 was to generate an excuse for his delay in producing the management accounts and to look for “more time”.

As already noted above, a plain reading of the email of the 27th of October 2023 reveals that the Complainant was concerned about anomalies which he had found and that he was concerned that the accounts would not pass audit. I have already found as a fact that this concern was based a reasonable belief that the accounts were not being kept in accordance with the legal requirements and this being so the request for more time is quite consistent with this concern as arising from professional caution when faced with anomalies in the accounts rather than providing a spurious excuse for unjustified delay. In such circumstances I find on the balance of probability that the Complainant is not guilty of making his disclosure for a motive other than “the investigation of the relevant wrongdoing concerned”.  I therefore decline to make any deduction from the Complainant’s compensation award on the basis of motivation.

Other Work

In the present case the Complainant secured alternative employment for the first time in April 2024 (“the First Alternative Employment”). This raises the question as whether any loss attributable to the dismissal ceases altogether at that point (where the earnings are the same or greater) or is reduced to a differential loss only (where the earnings are less). The issue was clarified by the Employment Appeals Tribunal in  O'Kelly v WYG Engineering Limited [2013] 24 E.L.R. 279 in the following terms:

“The Tribunal is satisfied that a new employment only stops loss once it is permanent and on comparable terms to the employment from which a claimant is unfairly dismissed. The subsequent employment is this case was not such. While it did not act to stop the loss, account must be taken of the amount of earnings during that period in assessing loss.”

In that decision it is clear that what was meant by “permanent and on comparable terms” was where sufficient service is gained in the new employment to attract the protection of the Unfair Dismissals Acts.

An exception was noted elsewhere in the decision where the subsequent employment is lost due to the employee’s fault in which case the loss would be deemed to stop even though that employment was not permanent. As the Employment Appeals Tribunal put it:

“Instances could clearly arise where seemingly permanent employment ends before such protection is acquired and where continuing loss should not be counted against the first dismissal. For example, where a claimant obtained further permanent employment but was dismissed within a year on the grounds of gross misconduct, it would be hard to see why the first employer would have any subsequent liability”

The decision also clarifies that although the acquisition of new employment does not stop the loss, account is taken of the earnings made during that employment.

Applying the foregoing to the present case it is clear that the First Alternative Employment secured by the Complainant falls into the category of non-permanent. It was put to the Complainant that his First Alternative Employment was lost effectively due to poor performance. The letter from that employer produced by the Complainant (as quoted above) makes it clear that this was not the case and I noted that the issue was not pursued further by the Respondent when this evidence was produced. I find that in the present case the exception where the employment is lost due to the employee’s fault does not apply. 

On this issue I conclude that this alternative employment did not transpire to be “permanent and comparable” to the employment with the Respondent and that it was lost due to no fault on the part of the Complainant and for these reasons the Complainant is entitled to claim for continuing differential losses for the relevant period. Accordingly, I will allow in full the first differential losses as claimed in the sum of €5,876 

Mitigation

It is apparent from the provisions of Section 7 and well established in case law that the burden of proving losses attributable to the dismissal is on the employee. The pre-condition to the claiming of loss whereby a dismissed employee must make genuine efforts to mitigate that loss is also expressed in Section 7 (2) (c) which obliges the adjudicator to have regard to “…the measures (if any) adopted by the employee or, as the case may be, his failure to adopt measures, to mitigate the loss…. Moreover the principle has been explained in by the Employment Appeals Tribunal in the well-known decision in Sheehan v Continental Administration Co. Ltd. UD 858/1999 in the following terms;

“a claimant who finds himself out of work should employ a reasonable amount of time each weekday in seeking work….The time that a claimant finds on his hands is not his own, unless he chooses it to be, but rather [is] to be profitably employed in seeking to mitigate his loss”. 

Put even more bluntly, the principle of mitigation in the context of a claim for unfair dismissal reduces itself the to the proposition that the loss of a job means that finding another should itself be almost a full-time job. That said, it must also be recognised that the process of applying for employment may involve considerable work even for each individual application.

Applying all of the above the present case I will first examine the initial period of unemployment immediately following the dismissal up to the date when the First Alternative Employment was secured. This is a lengthy period of unemployment of some 23 weeks duration – just under six months. In the present economic environment including in late 2023 to the Easter season in 2024, this seems like a disproportionately long period with no employment secured. Added to this is the very sketchy documentary evidence belatedly furnished by the Complainant to support his oral evidence that he spent time every day during this period looking for work. The Respondent contended that the Complainant had adduced in effect no evidence of mitigation. On the balance of probabilities and doing the best that I can with the available evidence I find that the true position lies somewhere between the two extremes contended for by the parties. I think it probable that the Complainant did make efforts to find alternative employment as indeed evidenced by his eventual success in this regard. However, I the documentary evidence does not fully support his oral evidence as to the extent of his efforts. In all of the circumstances and using the yardstick set by Section 7 (1) (c), i.e. the making of an award which is just and equitable having regard to all the circumstances, I will allow a figure of €15,000 by way of compensation for the losses sustained in this period.

Turning then to the next period in respect of which loss attributable to the dismissal is claimed, namely the period from when the First Alternative Employment ceased to the period when the Present Employment was secured – from the 24th July 2024 to 20th January 2025. This period was of some 26 weeks duration, just short of six months. Again, this seems like an unusually long period given the strength of the economy then and still. As regards efforts to mitigate during this period the documentary evidence, such as it is, is somewhat more specific than that offered for the first period in that there is evidence of activity – sending applications for jobs – in September and October 2024. However there is no documentary evidence to support such efforts for the remainder of the period. There is therefore  some evidence of motivational activity for about two months. Whilst I acknowledge that the measurement of compensation is not an exact science and being mindful of the overall requirement to deliver an award which is just and equitable having regard to all the circumstances, I will allow a figure representing 8 weeks of full losses being the sum of €10,826 by way of compensation for the losses sustained in this period

Turning to the final loss claimed being a differential loss in the Present Employment - being the difference between actual earnings and those which would have been earned with the Respondent but for the dismissal - applying the principles outlined above, I deem this loss to be attributable to the dismissal and I will allow it in full in the sum of  €3,035

Accordingly the total award made is

First period of unemployment                   €15,000

First differential                                             €  5,876

Second period of unemployment              €10,826

Second differential                                        €  3,035

Total                                                                  €34,737

Part 6 - Summary of Findings

1. The Complainant having established that a disclosure of relevant information was made to the Respondent, and the Respondent having failed on the balance of probabilities to rebut the presumption that the disclosure was a Protected Disclosure, the same is deemed to be a Protected Disclosure.
2. The Complainant, on the balance of probabilities having established that his dismissal by the Respondent resulted wholly or mainly from the making by him of a Protected Disclosure, the Complainant is deemed to have been unfairly dismissed
3. The Complainant is awarded compensation in the total sum of €34,737 representing losses attributable to the dismissal which said figure is reduced to reflect the partial failure by the Complainant on the balance of probabilities to discharge the burden of proving his efforts to mitigate his losses.

CA-00063238-001 The Complainant was unfairly dismissed. The Complainant is awarded the sum of €34,737 by way of compensation for unfair dismissal.

Workplace Relations Act 2015 (as amended) - Section 41 subsections (13) and (14) (b) – Private Hearing – Anonymisation- Zalewski v. Adjudication Officer & Ors [2021] IESC 24 - Schedule 5 Part 1 Item No 28 - Protected Disclosures Act 2014 - Protected Disclosures (Amendment) Act 2022 - Sections 5. (1), 5 (2) (a), 5 (2) (b), 5 (3) (a), 5 (3) (b), 5 (3) (f), 5 (7), 5 (8), 6 (1) (a), 11, 12 (1), 12 (2), 12 (7C),  13, 13 (2), 13 (2B), Schedule 1, Schedule 2 – Section s.5(8)- Burden of Proof - Presumption in Section 5 (8) - Reasonable Belief - Informational Content – Baranya v. Rosderra Meats [2021] IESC 77 - Wrongdoing -  Correctness of Information - Darnton v University of Surrey [2003] I.C.R. 615  - Clarke v CGI Food Services [2020] 3 I.R. 389  - Barrett v. Commissioner of An Garda Síochána and Minister for Justice [2023] E.L.R 165 - Unfair Dismissals Act 1977 (as amended) - Sections 2 (1) (a), 3,  6 (1), 6 (2) (ba), 6 (2D) , 7, 7 (1A), 7 (1) (c) (i), 7 (2A) –Dismissal Penalisation Claims and Non-Dismissal Penalisation Claims Compared – Claims for Unfair Dismissal under Section 6 (1) compared with Dismissal under Section 6 (2) (ba) - Burden of Proof - A Care Worker v. A Residential Setting  ADJ-00019062 – Dismissal resulting Wholly of Mainly from Making by Complainant of protected disclosure - Dougan and Clarke v Lifeline Ambulances Ltd [2018] E.L.R. 210 - Mitigation – O'Kelly v WYG Engineering Limited [2013] 24 E.L.R. 279 - Sheehan v Continental Administration Co. Ltd. UD 858/1999 – Section 7 (2B) - Motivation