Complainant

Respondent

Parties

Jan Ebbs

Sunyata Retreat Centre Company Limited

Representatives

Mr. John Ebbs

Self-Represented

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Schedule 2 of the Protected Disclosures Act, 2014

CA-00059762-001

02/11/2023

The Complainant is a non-executive director of the Respondent. On 2nd November 2023, the Complainant referred the present complaint to the Commission. While this complaint was initially referred under the Charities Act, it was later clarified and accepted that the present complaint falls under the legislation listed above.

By submission, the Complainant alleged that she made various protected disclosures to the members of the board of directors of the Respondent. In this regard, she submitted that she raised various issues regarding the governance of the Respondent, and various potential liabilities that might arise on foot of the same. Thereafter, the Complainant submitted that she suffered various forms of penalisation, including her ultimate removal as a non-executive director. In denying the allegations raised by the Complainant, the Respondent submitted that the Complainant did not make a protected disclosure as defined by the Act. They further submitted that the content of the alleged disclosures fell within the normal functions of the Complainant’s role. Finally, they denied any link between the removal of the Complainant and the alleged disclosures, stating that the same arose on account of the Complainant’s failure to complete relevant statutory declarations.

A hearing in relation to this matter was convened for, and finalised on, 16th September 2024. Said hearing was convened for, and finalised on, 30th September 2024. This hearing was conducted by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings. No technical issues were experienced during the hearing.

Both parties issued extensive submissions in advance of the hearing. Said submissions were expanded upon and contested in the course of the hearing. The Complainant and her partner gave evidence in support of her complaint, while two members of the Respondent’s board gave evidence in defense. All evidence was given under oath or affirmation and was opened to cross examination by the opposing sided.

At the outset of the hearing, the Respondent raised an issue as to jurisdiction, given the nature of the same, this will be discussed following a consideration of the substantive matter. 

In evidence, the Complainant stated that she was engaged by the Respondent as a non-executive director from September 2014.

In mid-2023, the Complainant relayed some of concerns regarding the operation of the Respondent to other board members. Firstly, in or around May 2023, the Complainant raised concerns regarding the fact that some employees of the Respondent did not have written contracts of employment, in contravention of the relevant legislation.

The Complainant further raised issues regarding the taxation governance of the Respondent. In this regard, the Complainant submitted that she, via her partner, informed a fellow board member of concerns regarding the fact that the Respondent’s tax exemption status was allowed to lapse, leading to a potential revenue liability.  In addition to the same, an issue regarding payments to the Board and PAYE implications arising from the same, were disclosure.

In evidence, the Complainant stated that the latter two concerns were disclosures during a phone call with a member of the board in mid-2023. In answer to a question posed by the Adjudicator, the Complainant accepted that these matters were not raised during a formal board meeting. In this respect, the Complainant stated that she found it difficult to be heard at such meetings.

In evidence, the Complainant stated that she felt that she could no longer ignore the concerns listed above. She stated that she consulted with her partner, who had professional expertise regarding revenue matters, and concluded that the Respondent may well incur a significant series of liabilities on foot of the issues outlined. In answer to a further question posed by the Adjudicator, the Complainant clarified that her partner conducted the call with the Board member in question, but did so on her instruction.

Following these disclosures, the Complainant stated that she suffered a series of detriments. In September 2023, the Complainant was informed by the Director of the Respondent that she was banned from attending board meetings and participating the company Whatsapp group. Thereafter, on 30th January 2024, the Respondent served notice on the Complainant that they intended to remove her from the Board. Shortly thereafter, this removal took effect, and the Complainant was removed as a non-executive director of Respondent.

By submission, the Complainant, via her representative state that raised serious concerns regarding the governance of the Respondent. In this respect, she submitted that issues regarding breaches of employment and revenue legislation were identified and communicated to board members. Shortly following these disclosures, the Complainant suffered professional isolation, cumulating with her removal from the Board. On foot of the foregoing, the Complainant submitted that she suffered penalisation in response to issuing a protected disclosure to the Board and that, consequently, her complaint should be deemed to be well-founded.

From the outset, the Respondent denied each of the allegations raised by the Complainant and submitted that she suffered no adverse treatment, much less penalisation.

In this regard, it was accepted that the Complainant was engaged as a non-executive director of the Respondent. Regarding the purported protected disclosures, the Respondent submitted that none of the issues raised by the Complainant were referenced during board meetings. In this respect, they submitted that the appropriate forum for the ventilation such concerns, and discussion in relation to the same, was during said meetings. They further submitted that the Complainant’s role as a non-executive director is, at least in part, to ensure the correct governance and operation of the Respondent. In this regard, they submitted that the issues complained of by the Complainant clearly fell within that category and could not form the basis for a protected disclosure.

Regarding the evidence of the Complainant, it was accepted that at the relevant time, she submitted that her partner had some expertise in taxation matters. In this regard, she arranged for her partner to speak with one of the Board members regarding certain matters within his range of expertise. Thereafter, this tax issue was discussed at every board meeting as part of the standard governance of the Respondent. These matters cumulated with a successful audit by the revenue commissioners and confirmation that no further actions would be taken regarding the liability that had arisen.

Regarding the alleged acts of penalisation, the Respondent submitted that the Complainant was removed from the board following her refusal to sign various compliance documents mandated by the Charities Regulator. In particular, the Complainant was requested to complete a form that would permit her to be listed on the register of charities as a director of the Respondent. Despite multiple requests on the part of the Respondent, the Complainant persistently failed to complete the form in question. The Complainant was warned that her failure to complete the form would potentially lead to her removal as a director. In circumstances whereby the Complainant again refused to complete the document in question, she was subsequently removed a director of the Respondent.

Having regard to the foregoing, the Respondent submitted that the Complainant did not issue a protected disclosure as defined by the Act. This was denied on both a factual basis, in that it was not the Complainant that spoke with the board member is question and on the legal basis, in that the issues discussed were within the Complainant’s normal range of duties. While it was accepted that the Complainant was removed as a director, and consequently suffered a detriment, it was absolutely denied that this arose due to any purported protected disclosure on her part. In this regard, the Respondent submitted that the Complainant was removed as a consequence of her continued refusal to sign a document necessary for the Respondent to fulfil their compliance requirements. In contemplation of the foregoing points, the Respondent submitted that the present complaint should fail, and the complaint be deemed to be not well-founded.  

At the outset of the hearing, the Respondent submitted that the Complainant did not have standing to bring the present complaint, as she was not an employee of the Respondent. By response, the Complainant submitted that the impleaded Act had been amended to extend its provisions to various non-employees, including non-executive directors.

In this regard, Section 5(1) of the Act, defines a protected disclosure in the following terms,

“…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…”.

Section 3(1), as amended, defines “Worker”, as,

“...an individual working in the private or public sector who acquired information on relevant wrongdoings in a work-related context and includes…

…

(d) an individual who is or was provided with work experience pursuant to a training course or programme or with training for employment (or with both) otherwise than under a contract of employment,

…

(e) an individual who is or was a shareholder of an undertaking,

(f) an individual who is or was a member of the administrative, management or supervisory body of an undertaking, including non-executive members,

(g) an individual who is or was a volunteer,

(h) an individual who acquires information on a relevant wrongdoing during a recruitment process.”

Section 12(1) of the Act provides that,

“An employer shall not penalise or threaten penalisation against an employee, or cause or permit any other person to penalise or threaten penalisation against an employee, for having made a protected disclosure.”

Regarding the definition of “employee” for these purposes, subsection 7B provides that,

“In this section and Schedule 2, references to "employee" include a worker referred to in paragraphs (d), (g) and (h) of the definition of "worker" in section 3(1).”

In circumstances whereby the definition of non-executive director falls under part (f), cited above, it is apparent that such persons are not considered employees for the purposes of Section 12(1). This being the case, the protections listed in Section 12(1) do not extend to “non-executive” members of an organisation.

While the Complainant has submitted that she is provides these services on a voluntary basis, and consequently may fall under part (g), it is noted that non-executive director, a more precise description of the Complainant’s role, is expressly listed in part (g) and properly falls under that definition.  In this respect, it is clear that the legislature specifically and expressly listed non-executive directors within the definition of “worker”, and thereafter omitted the same from the definition of “employee” for the purposes of Section 12(1). In addition to the foregoing, it is noted that the “relevant information” forming the basis of the purported protected disclosure could only have come to the Complainant’s attention by virtue of her role as a non-executive director.

Having regard to the foregoing, I find that while the Complainant falls within the definition of “Worker” for the purposes of Section 3(1) of the Act, as an executive director of the Respondent she is not an “employee” for the purposes of Section 12(1).

In such circumstances I find that the Complainant does not have standing to bring the present complaint, and the same is deemed to be not well-founded.

I find that the Complainant does not have standing to bring the present complaint, and the same is deemed to be not well-founded.

Protected Disclosure, Non-Executive Director, Section 3(1), Section 12