Complainant

Respondent

Parties

Pieter  Joubert

Post Formed Systems Ltd

Representatives

Seán Ormonde & Co. Solicitors

Denis Collins BL instructed by McCoy Solicitors

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-00059162-001

02/10/2023

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00059162-002

02/10/2023

Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005

CA-00059162-003

02/10/2023

It is the Complainant’s case that he was unfairly dismissed. He submits that the dismissal represented penalisation, in the context of him making a protected disclosure. The Complainant was hired in September 2022 and summarily dismissed on September 5th 2023. [Clarification as to the correct start date was sought by the Adjudication Officer as there was dispute between the parties.]

He submits that there were issues between him and the General Manager, SO, to whom he reported, which worsened from July 2023 onwards.

Six (6) months into his employment, the Complainant received a job offer elsewhere, brought it to the company’s attention, and was given a pay raise (from €36,000 to €52,000).

The Complainant identified the issues between him and SO as including abusive language, threatening behaviour, and bullying and harassment. He submits that matters worsened in July 2023. He submits that his protected disclosure pertained to health and safety, and also bullying.

His first formal grievance went into Mr. Connolly [the Managing Director and majority shareholder of the company], about SO, in August 2023. The Complainant submits that a grievance meeting was held on 22/8/2023 but there was no outcome and no right of appeal. He submits that after this meeting, his computer passwords were taken and his access to the systems was restricted. He submits that he was excluded from a staff meeting also. He submits that he was summarily dismissed without reason on 5/9/2023. He sent a follow up email on 6/9/2023 and received no response.

The Complainant was out of work for a period of one month (until 9/10/2023), before taking up a new position at €36,000 (€16,000 less per annum that the role he held for the Respondent company post pay-raise]. The Complainant worked for that company for thirteen (13) to fourteen (14) weeks. He was then out of work again for a period of six (6) weeks before he found work with his current employer also at €36,000 per annum.

The Complainant calculates his services as including his notice period (for which he was paid in lieu of notice) and submits that brings the period of his service in excess of 55 weeks, i.e. over the 12 month requirement under the Unfair Dismissals Act 1977.

The Respondent company denies the Complainant’s claims. It submits that there was no protected disclosure, that what the Complainant has identified as his protected disclosure (email of 9/8/23 pertaining to paint thinners) is not ‘relevant information’ for the purpose of the 2014 Act, and therefore, the allegation of a ‘protected disclosure’ falls at the first hurdle. It therefore follows that there was no penalisation for a protected disclosure. The Respondent submits that the reason for the dismissal did not arise from his email of 9/8/2023, which is what the Complainant says is the ‘protected disclosure.’ It further submits that the interpersonal difficulties between the Complainant and SO, which come with the remit of s. 5A of the 2014 Act.

The Respondent submits that the date of dismissal 5/9/2024, and cites the Labour Court case of Fyffes Tropical Ltd. V. Loui Osman UDD2413 in relation to how to correctly determine the ‘date of dismissal’ in the Unfair Dismissals Act 1977. [If it is deemed a penalisation – service does not apply.]

In relation to the third complaint the Complainant has filed – a complaint under s. 28 Safety Health & Welfare at Work (SHAW) Act – it is submitted that a matter of adjudicated under s. 27 would be a health and safety issue, pertaining to a breach of the statutory requirement. The Respondent submits that, there is nothing on its face within 9/8/2023 email that would give rise to a prima facie claim which would give rise to a case under the SHAW Act.

The Adjudication Officer gave both sides an opportunity to make a supplemental submission after the hearing on two legal points which arose. Within 10 days  of the hearing, the Respondent, at the request of the Adjudication Officer, was to submit:-

1.       The Complainant’s payslip – this pertained to start date, and correctly determining the length of the Complainant’s service.

2.       The thirteen (13) page grievance document [a photocopying error meant that the copy of that originally submitted was incomplete]

3.       A supplemental submission addressing:-

-          The issue of notice in the matter of determining the correct ‘date of dismissal’ under the relevant legislation and the correct length of the Complainant’s service

-          S. 5A of the Protected Disclosures Act: Whether the person to whom the Complainant reported, SO, came within the scope of that definition given he was an external consultant rather than an employee.

The Complainant was given a right of reply, within a further two-week period to submit his own supplemental submission, addressing the two identified legal points.

Summary of the Complainant’s written submissions

The Complainant was employed by the Respondent as an Operations Manager from 9th September 2022 until his dismissal on 5th September 2023. At the time of dismissal, his gross salary was €52,000, having been increased from €36,000 in March 2023. (His contract of employment is exhibited at Tab 2). It is submitted that the Complainant was dismissed without reason by the Respondent on 5th September 2023.

It is his submission that over the first number of months with the Respondent, it became evident to the Complainant that the internal workings of the company were not being managed effectively. In particular, the Complainant began to have difficulties with SO (General Manager). It is submitted that these difficulties comprised of micro-management, abusive and threatening interactions, demanding impossible outcomes, and undermining the Complainant’s position and ability to perform his duties. Amongst these interactions, of note were the following occasions:-

a.       In early June 2023 on the factory floor with MT (foreman) and other factory staff to witness, SO advised the Complainant in an aggressive tone that “[Named Person] is not to touch the beam saw if [the Complainant] wants to keep his job”. It is submitted that the instruction was unreasonable since that [Named Person], was the only trained operator of the beam saw in attendance that day and was available to assist at the time.

b.       In or around the start of July at a meeting wherein the Complainant raised several issues with SO, SO told the Complainant to “shut the fuck up”, continually interrupted him and shouted repeatedly at the Complainant. This was not one occasion but rather general behaviour which was directed at the Complainant on multiple occasions in various meetings. It is submitted that when the Complainant disagreed with something or raised a concern in an open meeting, SO would say: "Would you shut the fuck up" in front of others. This happened multiple times in informal meetings.  It is submitted that if SO perceived he was being interrupted he would shout:" I'm talking!" or he would interrupt the Complainant by shouting: "Stop".

c.       It is submitted that on or about 7 July 2023 the Complainant was instructed that he “better start managing the factory” by daily production per cell to which the Complainant protested that it would literally require the micromanagement of every single employee in the organisation, which was impossible. The response to this was in a threatening and intimidating tone that “that was the [Complainant’s] job”, that he wanted to know what we expect daily per production cell and that the Complainant better ‘start doing it fucking quickly” and then walked away.

It is submitted that on 9th August 2023, the Complainant made a protected disclosure to the owner, Mr. Mark Connolly, to report an incident that occurred the previous day where a new employee was instructed by the foreman to clean the canteen floor with thinners. It is submitted that the Complainant was purposefully excluded from subsequent meetings held regarding this incident, which speaks to undermining his position as the Operations Manager.

Despite this, it is submitted that the Complainant made every attempt to conduct his role to the best of his ability but submits that certain ingredients for the successful management of the company were lacking, in particular, employee morale and understaffing. In March of 2023, the Complainant decided to seek employment elsewhere. When he received an offer from another company, he brought this to SO and attempted to hand in his notice. SO advised the Complainant that they wanted him to remain in employment with the Respondent, that the Respondent was going to increase his salary from €36,000 per annum to €52,000 per annum, and introduce an incentive scheme for all production and office staff to improve morale for all employees.  Additionally, SO promised to hire more staff to enable the Complainant to perform his job properly. When relying on the said promises including the substantial potential incentives, the Complainant turned down the other job opportunity. It is submitted that this is reflected in the Complainant’s self-assessed probation report and the Respondent’s assessment of him of 10th March 2023. It is submitted that the report generally is very positive with the exception of some observations from SO, which the Complainant characterises as being unfair.

Furthermore, it is submitted that in July 2023 during a meeting, SO advised the payroll administrator to provide a raise to a particular employee AD. In July 2023, SO then instructed the payroll administrator to reverse the said raise and advised AD that her raise was given due to an error on the Complainant’s part.

It is submitted that the ongoing expectation for factory management without planning or resources lead to the Complainant lodging a formal grievance.  The following issues formed part of his grievance:

a.       On or about 7 July 2023 the Complainant was instructed that he “better start managing the factory by daily production per cell, and he better start doing it fucking quickly”. The Complainant was not afforded an opportunity to respond to this.

b.       In a meeting held on 19th July 2023, SO tasked the Complainant with managing and planning factory production per work cell, with a focus on measuring and comparing the performance of each work cell to the planned performance. While the Complainant agreed with this approach, it is submitted that SO’s primary focus was on the desired outcome of the management system, overlooking the necessary steps and resources needed for implementation. The Complainant discussed the detailed roadmap for tracking and comparing production units in the manufacturing process, highlighting the missing components required for implementation. Despite the Complainant’s efforts to communicate these missing components, SO insisted on immediate reporting from a system that did not yet exist, failing to acknowledge the steps needed for implementation. In numerous discussions held with SO, the Complainant emphasised the need for restructuring the manufacturing floor, updating the product structure in the ERP system, and effectively allocating human resources to the production cells and the additional hours and efforts of all key employees currently over committed, all of which were required for proper implementation of this system. The executable project plan would have required management approval and support to implement, none of which was provided.

c.       It is submitted that after the above 90-minute contentious discussion where no new facts or statements were introduced, and no new ideas or plans emerged, the Complainant decided to discontinue verbal discussions. It is submitted that SO repeatedly ignored, misrepresented, or forgot previous discussions, and refused to recognise the challenges associated with implementing the system for reporting and production management. It is submitted that the Complainant also felt increasingly antagonised and misrepresented during verbal communications and began to suspect that SO was actively trying to be unhelpful and to target him. Consequently, the Complainant requested that all future communication from SO be in written format to clearly convey his requirements and reduce the risk of misrepresentation and antagonism. (Tab 5-Draft Road Map Commenced 10th October 2022; Tab 6-Ongoing Expectations Explained in Technical Terms).

d.       It is submitted that after the Complainant dismissed himself from the meeting, SO lost his temper and called the Complainant back into the office, shouting that he was not to leave. With the office door open, the office staff could hear this part of the interaction. The Complainant responded that SO would not speak to him like that and that such behaviour needed to stop immediately. (Tab 7- Email thread between Complainant and SO.)

It is submitted that as a result of the above meeting on 19th July 2023, and ongoing bullying and harassment of SO, together with (what the the poor management of the Respondent company under SO’s direction as acting Managing Director, on 19th July 2023 the Complainant raised an official grievance to the owner of the Respondent, Mr Mark Connolly. (Tab 8 - Emails 19th July) The Complainant made a further complaint against SO to Mr Connolly on 2nd August 2023. (Tab 9-Complaint SO) Mr Connolly reverted on 8th August 2023 wherein Mr Connolly replied with the Respondent’s bullying policy. (Tab 10 - Email from Mr. Connolly 8th August 2023) On 18th August, the Complainant was asked to give his computer password to Mr Connolly. On 21st August, the Complainant was invited to an alleged grievance hearing to be held the following day. (Tab 11-Invite to Grievance Meeting 21st August 2023) The said meeting took place on 22nd August. In attendance were the Complainant, Mr Connolly, and Ms. Susan Connolly (Mr. Connolly’s sister) as a note taker. (Tab 12-Minutes of Meeting) During the meeting, the Complainant handed Mr Connolly a document which outlined his concerns and provided suggested ways forward for the parties. (Tab 13-Document Outlining Concerns – the 13 page document) It is submitted that Mr. Connolly took offence to this document and immediately sided with SO (in what was intended to be a fact-finding, investigatory meeting from a grievance raised by the Complainant). When the meeting finished, the Complainant never received any further information about his grievance before he was dismissed. From the end of the said alleged grievance meeting, the Complainant’s access on company systems was restricted. He was no longer able to access any HR Folders (despite having HR functions) and was also locked out of the Respondent’s Xero Accounting Software (also crucial in the conduct of his role). The Complainant was also excluded from meetings he should have been involved in; namely on 14th August and 18th August (at which SO and Mr Connolly attended along with the full office-staff compliment).

On 5th September 2023, the Complainant was invited into a meeting by Mr Connolly and dismissed without reason or warning. He was simply advised by Mr Connolly that the Respondent did not “need your services anymore”. He was paid four weeks of notice, putting his length of service at 55 weeks and 3 days (one year, three weeks and three days). He was not granted with any right of appeal of this decision. (Tab 14-Final Payslip) Immediately following the meeting, the Complainant was escorted by the Quantity Surveyor, TB, to his desk to clean his belongings out and was then escorted from the property.The following day, on 6th September, the Complainant emailed Mr. Connolly to ascertain the reason for his dismissal. (Tab 15-Email Reason for Dismissal Query 6th September 2023) To date the Complainant has had no further correspondence from the Respondent, no outcome to his grievance, no appeals mechanism to his dismissal and has been penalised through exclusion at meetings, verbal abuse and ultimately his dismissal as a result of making a protected disclosure to the Respondent.

Summary of the Law the Complainant is citing

Penalisation.

The Complainant was penalised for making a complaint under the Safety, Health and Welfare Act 2005.

Section 27(3) of the Safety Health and Welfare at Work Act provides that,

“An employer shall not penalise or threaten penalisation against an employee for—

                                                               i.      acting in compliance with the relevant statutory provisions,

                                                             ii.      performing any duty or exercising any right under the relevant statutory provisions,

                                                           iii.      making a complaint or representation to his or her safety representative or employer or the Authority, as regards any matter relating to safety, health or welfare at work,

                                                            iv.      giving evidence in proceedings in respect of the enforcement of the relevant statutory provisions,

                                                             v.      being a safety representative or an employee designated under section 11 or appointed under section 18 to perform functions under this Act, or subject to subsection (6), in circumstances of danger which the employee reasonably believed to be serious and imminent and which he or she could not reasonably have been expected to avert, leaving (or proposing to leave) or, while the danger persisted, refusing to return to his or her place of work or any dangerous part of his or her place of work, or taking (or proposing to take) appropriate steps to protect himself or herself or other persons from the danger.”

In Paul O’Neill v Toni & Guy Blackrock Limited [2010] ELR 21, the Court held that the detriment complained of must have been imposed for having committed a protected act within the meaning of Section 27(3) of the Act:‘The detriment giving rise to the complaint must have been occurred because of, or in retaliation for, the Claimant having committed a protected act. This suggests that where there is more than one causal factor in the chain of events leading to the detriment complained of, the commission of a protected act must be an operative cause in the sense that “but for” the Claimant having committed the protected act he or she would not have suffered the detriment. This involves a consideration of the motive or reasons which influenced the decision maker in imposing the impugned detriment.” In this matter, it is submitted that it is evident per the above timeline of events that the mistreatment of the Complainant arises from his reporting to Mr Connolly, breaches of the Act, together with his attempt to exercise his right to a safe place of work, and his entitlement to raise a grievance.

Protected Disclosures

The Protected Disclosures Act 2014 provides,

“employee” has the meaning given by section 1 of the Unfair Dismissals Act 1977 and includes an individual who is deemed to be an employee by virtue of subsection (2) (a).” 

2.       The Act and it also defines a worker in the following terms,

“an individual who—  

(a) is an employee,  

(b) entered into or works or worked under any other contract, whether express or implied and (if it is express) whether oral or in writing, whereby the individual undertook to do or perform (whether personally or otherwise) any work or services for another party to the contract for the purposes of that party’s business,

(c) works or worked for a person in circumstances in which—  

(i) the individual is introduced or supplied to do the work by a third person, and  

(ii) the terms on which the individual is engaged to do the work are or were in practice substantially determined not by the individual but by the person for whom the individual works or worked, by the third person or by both of them…”

The Protected Disclosures Act 2014 (hereinafter referred to as the 2014 Act) defines a “protected disclosure” as being a “disclosure” of “relevant information.” Section 5(1) of the 2014 Act states that information is considered to be “relevant information”,

1. 1. in the reasonable belief of the worker, it tends to show one or more relevant wrongdoings, and
   2. it came to the attention of the worker in connection with the worker’s employment.” (Section 5(2)).

The 2014 also defines “wrongdoing” as follows:

“(a) that an offence has been, is being or is likely to be committed,

(b) that a person has failed, is failing or is likely to fail to comply with any legal obligation, other than one arising under the worker’s contract of employment or other contract whereby the worker undertakes to do or perform personally any work or services,

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

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

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

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

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

(h) that information tending to show any matter falling within any of the preceding paragraphs has been, is being or is likely to be concealed or destroyed.”

It is respectfully submitted that the Complainant has suffered a detriment in his poor treatment, dismissal, and being refused due process and natural justice in the hearing of his grievance.

At the hearing,

The Complainant Mr. Joubert took the oath and gave evidence on his own behalf.

He outlined that he was initially hired as a production planner on 11/9/2022, that he started working there the day of interview. He said that he quickly realised he was not the production planner, that he was the operations manager. He said that everyone reported to him. [He listed the names of some employees.]

He said that there was a large staff turnover, that there were approximately nineteen (19) people but the number was reducing. He was asked when he started experiencing issues. He said that there were pervasive issues. He described the workplace as ‘dysfunctional’, that he had never been in a company with ‘such low staff morale’ or more ‘turnover’. He said that there were aging machines, that there was ‘no real stock control’, that the ‘ERP didn’t reflect in real time the changes in stock.’ He was critical of how things were managed on the factory floor. He said there was ‘a consultant in before’ and that ‘they never got it right.’ He said he had to ‘try to figure out a way’ to have drawings approved by clients and have them approved by the drafts-people.

He was asked about the atmosphere. He said that it was ‘adversarial to say the least.’ He said that the ‘guys on the factory floor thought I was going to be SO’s henchman.’ But he said that he ‘just wanted a system that worked’, that he ‘had a vision of what we wanted to achieve over time’, that he was ‘introducing what SO suggested.’ He described ‘scope-creep’, ‘the more things we got involved in, the more things we had to get involved in.’ He said that there was ‘great uncertainty’, that there was ‘a bottle neck’, that there was ‘six (6) months of orders’ but that ‘they didn’t have more than a week’s work (drawings) to send down to the factory floor’, that the ‘office [was] always lagging behind the factory floor.’ He said that there were not enough drafts-people, some were only working part-time at night, and in a bid to address that, the hiring wage was increased, in conjunction with the foreman.

He was asked what the impact, if any, of the circumstances he had outlined was. He said that it was ‘a high stress environment’, that he was ‘responsible for these targets you can’t meet’, that it resulted in having to deploy ‘hand-drawing’, that the experience was one of ‘stress’, of ‘flying blind’ and of ‘urgent jobs being put to the start’, that ‘there was no system in place.’

He was asked how he would raise an issue. He said that he and SO ‘always had discussions regarding what we currently need to do.’ He outlined looking at the turnover for the week being a ‘stable enough’ basis for them to forecast the future.

He said that SO ‘had a lot of fanciful ideas’ that were ‘not practisable.’ He said that one of the problems was SO ‘not putting anything in writing.’ He gave the example of the idea to redesign the stock area but never having enough employees to do it, and that the stockman was out doing delivers [due to being understaffed]. He said that SO was ‘almost constantly complaining about everything’ and that the Complainant was ‘pushed to breakpoint.’ He said that the result was the risk of ‘balls’ being ‘dropped.’

He was asked about the ‘Protected Disclosure.’ He said that it was a bullying complaint. He said that he gave Mr. Mark O’Connell the grievance document. He said that ‘not only is SO being a bully towards me, but being a bully in general.” He gave the example of the employee, CC, ‘with the thinners incident.’ He said that verbally, he was spoken to ‘like you’re nothing’, being told ‘Stop! I’m talking’ by SO in meetings. He said: ‘I don’t mind much of that because it does not influence my day-to-day.’ He said he was being told: ‘You’ve to do this, this and this – you better start doing that, and do it fucking quickly…’

He said that after he brought the bullying complaint to Mr. Mark Connolly, that he received a response about a week later, that he was asked whether wanted to deal with it formally or informally, and he elected formally.

He outlined a pattern of being undermined. He said that SO ‘made it look like I was the person who made the mistake.’ He said that ‘this started looking really threatening to my own job.’ He gave me the example the change to [a named employee’s] pay. He explained how their rate was increased and then, after the change, it was changed back again. He said ‘SO blamed that on me.’ He said that luckily, he had the [named] payroll administer there, that she was the one who entered the new amount; and was able to clarify that when the employee was upset about the decrease.

In July 2023, he lodged the formal bullying complaint and attended what he thought would be ‘a good faith meeting.’ He said that Mark Connolly and Susan Connolly were both present at that meeting. It was his intention to address issues and find solutions going forward.

The Complainant said that he was warned by other employees: ‘If you have beef with SO, you’re going to get fired.’ He said that he ‘put down this document [the 13 page document] to put down and convey my willingness, and put down the issues going forward, to have a functional workplace – I also wanted to lay out the problems.’

He was asked about the email  of July 19th [Page 40 of the booklet], in which there is a reference to the Complainant walking out a meeting. He said that was the ‘last moment when I decided that this is not working; Can’t work with this.’ He then emailed Mark Connolly the document entitled ‘Official Complaint’ [19/7/2023].

Of 22nd August 2023 meeting: He said that ‘apart from the bullying, this document sets out what I think would be better management practices.’ He said that SO was ‘running this business into the ground’ and he also accused SO of running his own business.

He said that there was a production meeting twice a week for two (2) hours, that SO would come out for that, or if there was some H&S issue, or the issue with the employee whose pay was increased and then decreased. He was asked whether the minutes were an accurate reflection of what was said. ‘Yes, broadly’ apart from ‘some small mistakes.’ He said, of the meeting, that Mr. Mark Connolly was ‘defending SO and I was in trouble.’ He said: ‘I felt okay because I had my say.’ But ‘I came back after a weekend and all of a sudden, I was not in charge of the production schedule anymore.’ He said there were meetings held subsequently to which he was not invited, which he should have been at. He said that he was not invited to the production meetings re: [a named project off site] but still did the production management meeting, on the factory floor, getting the employees to do the drawings for the unit. He was asked about detriment. He said: ‘My password – now locked out of Xero [accounting software].’ He was asked how that would impact his job. He said: ‘I used Xero to check our weekly/monthly turnover; also the affordability of the incentives structure that SO had me working on; me and SO didn’t speak anymore.’ He said that [having been removed from these things]: ‘Everybody knew I was a dead man walking. I was treated like a leper there.’

He was asked how he was dismissed? He said: ‘The same way that everyone there gets dismissed; Wait until the end of the day and everyone is already home, so nobody else knows and you don’t have time to [react].’ He said that he was called down to Mark Connolly’s office, told that he will ‘no longer be requiring my services.’ TB (quantity surveyor/estimator) escorted me to my desk and then to the door. He said that he was ‘sent an email the following day’, that there was ‘no warning that was going to happen.’

The Complainant confirmed that he received notice pay.

He said that he was ‘not the perfect employee – I can lose my temper in that environment.’ He was asked to comment on the allegations. He said they were ‘so vague.’ He was asked whether he was ever put on notice of any of those allegations before Friday. He was asked about accessing sensitive company information. He said that he ‘didn’t access anything I wasn’t given access to and had a password for.’ He said that there was no investigation, ‘no opportunity to defend myself’, that there was no right of reply and nothing in writing in relation to the dismissal.

He outlined the impact as putting ‘a bit of strain on my relationship.’ He said that he was fired for no reason from [his] job, having had a very stressful time. He said: ‘I’m not going to be bullied or intimidated into doing dysfunctional stuff, on SO’s behalf – you’re an agent of the company first.’

Mitigation

The Complainant was out of work for a period of one month (until 9/10/2023), before taking up a new position at €36,000 (€16,000 less per annum that the role he held for the Respondent company post pay-raise]. The Complainant worked for that company for thirteen (13) to fourteen (14) weeks. He was then out of work again for a period of six (6) weeks before he found work with his current employer also at €36,000 per annum.

Health & Safety Issue?

He was asked what health and safety issue he believe he raised. He said, the paint thinners, dust (this is not in his WRC complaint), and bullying and harassment.

On Cross-examination by Counsel for the Respondent, Mr. Denis Collins BL

It was put to the Complainant the ‘Statement of main terms of employment’, exhibited at page 22 of the Complainant’s booklet of documents listed his role as: ‘Production Manager.’

He was asked about the title ‘Operations Manager’ and who gave him that title. He said he thought it was [SO].’ 

The Complainant said that his email said ‘Operations Manager, and nobody had any problem with that – clients and also the guys working with me.’ He said that ‘even on the organogram, my role is on top of everyone else there, except for SO’ that he was ‘not just the production manager.’

It was put to him that SO is the General Manager. It was put to him that a contract of employment requires two parties to change the terms. He said: ‘The nature of my job was not ‘production manager’ alone.’

He was asked about his commencement date – it was put to him that 12th September 2022 was the correct commencement date, the date when he actually started work. He was hired on September 8th.  The employment contract states: ‘Your employment began on 08/09/2022.’

It was put to him that the job description was that of ‘Production Planner’ that his sole job was to plan production.

He was asked whether he recalled getting a job description setting out his job. He said: ‘No.’

It was put to him that his responsibilities included things like the ‘rough cut schedule’ and the ‘material requirements plan’, which he accepted. It was put to him that was reviewed weekly, which he accepted. He was asked if his responsibilities included ‘forecast manufacturing.’ He said: ‘As far as possible, yes.’ He was asked about going down to the factory floor. He was asked about ‘fabrication’ and speaking to members of staff to ascertain what they were doing on any given day. He agreed that was included in his role.

He was asked about ‘assembly’ and whether he went down there to speak to members of staff and ascertain what they were doing and ‘numbers’ – to find out how many/what they were doing. He said: ‘We had an idea.’ Where did you get the idea from?  ‘We didn’t have enough people to man all the stations. [Therefore, hard to be accurate]. Sometimes, it was paper-based and sometimes it was not.’ He talked about trying to sustainably or accurately measure the required information, that finished work orders were measured in a paper-based system (euro value wise). He talked about the need to keep the schedule ticking over, and the use of Statii for work orders.

It was put to him that his approach conflicted with SO’s vision. He agreed with that. He characterised SO as ‘useless’, saying ‘he did nothing every day, only coming out of his office to shout at us’, and that SO was in his office doing Excel sheets and Invoices.

It was put to him that he reported to SO, the General Manager, who delegated certain tasks to the Complainant, and that the Foreman in turn reported to the Complainant. He said: ‘I didn’t know my role was to actually physically count the items as they were finished.’ It was put to him that his role was to count the components, that it was a requirement of his job – that that gave a forecast in the factory.

It was put to him that SO put in place a plan, that SO reported to the Board, and the Complainant was unwilling to work with staff on the ground. The witness disputed this, saying: ‘I did my job correctly.’

It was put to him that counting the units at assembly is one part in a very big business. He said that the data is not structured like that in the ERP.

It was put to him that he had engaged in ‘non-performance’ of a key part of his role. He said: ‘I’m telling you I did not get that instruction.’ He was asked whether he was told verbally. He said: ‘You can’t follow an unfollowable instruction.’ He said that he ‘did not receive an executable instruction. He said: ‘He [SO] wanted me to manage the factory by discrete manufacturing units, but the ERP was not set up in a way that allowed that to be done.’

He said that what he was there to solve, to change the ERP, so that it could be forecasted on a very granular level, but SO ‘did not want to even put the first step in.’ He said that ‘none of the guys there were IT specialists.’ ‘What SO was expecting of me was impossible, and he was increasingly demanding of me, and he became more threatening to my job.’ He said that what he, the Complainant wanted was ‘not just talk, actionable instruction.’ He said that was what ‘the big disagreement was about – the fact that I pushed SO to give me an actionable instruction.’

The Complainant was asked about the preparation of invoices and he started outlining the quote stage and the drawing stage… [However, the Adjudication Officer, at the hearing, had to direct the witness to modulate his attitude and tone.]

The Complainant was cross-examined on whether he had actually gone down to the factory floor and asked the workers on the ground for the required information.  He said:  ‘Yes, but the guys didn’t know.’ ‘We had decent estimates’ It was put to him that he had ‘some estimates.’ He said: ‘We asked them all the time – when do you think this will be done?’ It was put to the Complainant that the company will say that it was not being given that information required. The Complainant interjected : ‘… and it’s ‘my fault’ that the company could not keep to deadlines?’ saying ‘ yes - the company is ‘lying.’

He was asked where he stored the planning schedule? Statii? Desktop? And why he did not put it on the Sharepoint system. It was put to him that he would not allow other members of staff access to it.

He said that he had a personal tool he had designed – he said there was ‘an engine in there which calculates it which I designed’ - and that was what he was using. He said that it was his ‘personal tool.’ He said that ‘Statii is perfect but not for scheduling.’ He described it as ‘inadequate – no use for planning.’

It was put to him that it was Mr. Connolly’s company, and that he can decide how the company is run, that if you are employed by somebody, you follow instruction. It was put to him that the Board wanted the information, and that the Complainant was not willing to follow instruction.

He said that Statii was not used for scheduling. It was put to him that the company would disagree with that. It was put to him that he was required to put the schedule on Statii; and he was asked whether he gladly put the output of the schedule on Statii.

He said in terms of duties that he was doing everything at the same time, and that he ‘spent the bones of probably a month full time engaging with him [SO]’. It was put to him that he ‘fundamentally disagreed with SO.’ He said: ‘At the end, yes.’ He said that ‘it was a discussion up to a point, and then he put his foot down and started threatening me.’ He outlined the disagreement in terms of the potential options, that they had worked full time at all this options for six months, and that ‘we need to manage by workstation again – breaking up the ERP system into constituent elements, so that it can then be used to forecast accurately.’ It was put to him that he found the situation impossible, that he was not willing to communicate with SO other than by email correspondence. He said: ‘Yes. Because he calls me a liar after we had discussions.’ He said that SO ‘never put any executable instruction’ It was put to him that that was his opinion, and that the company would disagree with that. He said: ‘Yes, in my opinion.’

It was put to him that he found SO’s theory and way of doing things not fundamentally workable. He said: ‘Yes.’ It was put to him that it got to such a level that he was not willing to do it. He said: ‘I cannot follow an instruction that is not executable.’ It was put to him that as a production planner, his role is to plan production? He said: ‘among a myriad of other things.’ He was asked whether, as part of his role, he could have asked for help  He said that he just had meetings with SO, which never an agenda. He said that ‘It didn’t work.’ He agreed that there was room for improvement.

He said that the company simply ‘didn’t have the employees.’ It was put to him that there was a new employee due to start on 15/6/23 and that he delayed his employment by one week. He initially disputed this: ‘I didn’t.’ and then said: ‘I can’t remember. It was too long ago.’ He was asked whether he told the new employee not to turn up to work. He denied this: ‘No.’

He was asked about a specific [named] project. It was put to him that he was asked how much material was needed for that project and that he refused to provide an answer. He denied this, saying: ‘That’s not true.’

It was put to him that the Board wanted to introduce an incentivised system and he was asked as to whether that was introduced. He said: ‘No.’ He denied there being discussions between him and SO as to what was to be introduced. He was asked about a chain of email correspondence from 19/07/23. He said that: ‘It worked to a point – we had it accurate to euro value per week, but I was aiming for something hourly.’ He said: ‘That’s not the type of thing I do and that’s not the type of thing that a production manager would do.’

He was asked about an email [Page 41 of the booklet] with the heading ‘Well in Hand’, and whether production scheduling was well in hand was put to him.

The Complainant was asked what the fundamental issue between him and SO was. He said: ‘The lack of strategy going forward; and the bullying and the threatening behaviour if he didn’t get what he wanted.’

The Complainant said that difference between SO and the Complainant was his dream about how to differently schedule the factory but he [the Complainant] ‘couldn’t just wave a magic wand.’

It was put to him that his role was to ‘implement, plan it and forecast to the company.’ He agreed with that: ‘Yes.’ It was put to him that he ‘didn’t fulfil it.’ He denied this, saying: ‘I did it.’

Access to Xero Accounting Software

The Complainant’s access to Xero software was explored with him It was put to him that in January 2023, he asked to manage payroll for one month. He said: ‘No, for much longer than one month.’ It was put to him that he had access to Xero Accountant software for payroll at that stage. He said: ‘No, not at that stage.’ It was put to him that the company’s evidence will be that he had no authority to access the Xero Accounting software, that his only authority was to fulfil the HR role in 2023. It was put to him that the company’s position is that he did not need access to Xero Accounting software, that he only needed access to Statii. He disagreed with that.

Page 8 (of the 13 page document): ‘Outline of organisational shortcomings’

It was put to him that he was exercising his rights under bullying and harassment. He said: ‘Yes.’ It was put to him that he had interpersonal difficulties with SO? He said: ‘Yes.’

It was put to him that he had a grievance against SO and that he alleged that he was engaging in bullying and harassment.

The Complainant was asked about his raising the issue of SO’s consulting fees. He said that it was ‘expenses’, not private information. He said that he had ‘full access to Xero. I was treated as the Operations Manager.’ He said that he had access to Xero ‘in good faith.’

It was put to him that this (the 13 page document he submitted) was an attack on SO. He said: ‘As well’ but that it was ‘an attempt to [get the company] see this guy for the parasite that he is’, describing him as ‘massively expensive’ and asking: ‘Why can’t I go to ownership with actual valid complaints?’ He said: ‘I put myself at great personal risk. It was a good faith meeting. I was disappointed when it went down the way it did.’

‘The Path Forward without SO.’

It was put to him that this had caused Mr. Connolly great concern, that his view was the Complainant had reviewed personal sensitive commercial data. He responded that this was in the context of recording production [hours and expense of payroll – what percentage of payroll]. He was asked who gave him access, whether it was SO or the company. He said: ‘SO.’

He was asked about information on the company’s computer systems which was deleted on 17/8/2023. He was asked to clarify as the company is unable to identify/recover what it was. He said: ‘Don’t know. Can’t remember.’

On Re-direct

He was asked if he put the information on Sharepoint, eventually. He was asked if any problem raised with him about his production? He said: ‘No.’ It was put to him that there was no warning, no investigation. He concurred. He was asked whether there was any suggestion of misconduct with respect to him having access to the Xero account. He said: ‘No.’ He said: ‘I think I actually got it from SO to help me calculate incentives.’ He was asked if there were any issues raised? He said: ‘No.’ He said that ‘even in the hearing, nothing bad was said about my performance.’ He was asked whether his DSAR request was fulfilled. He said: ‘No.’

Closing Submission on behalf of the Complainant

In relation to the complaint filed under the Protected Disclosures Act, it was submitted that the bar for a prima facie case has been met. The Solicitor for the Complainant submitted that the Complainant became a problem for the Respondent company in his continuous naiveté not being met with gratitude, but rather met with hostility. It was submitted that there was an overlap between SHAW Act and the Protected Disclosure Act, in relation to the two grievances. It is submitted that the thirteen (13) page document was submitted in August 2023 but that the Respondent is availing itself of a ‘retrospective façade’, in order to take away from the fact that the protected disclosure was raised. It is submitted that the Respondent company wanted rid of the Complainant and got rid of him, only raising performance issues two (2) days before.

It was submitted that the upshot of the thirteen (13) page document was that the MD’s ego was hurt, and that was ultimately the document led to the Complainant’s dismissal.

It was submitted that no reasons provided for the dismissal, no right of appeal, ‘nothing’, that all communications ceased. It was submitted that the dismissal was ‘not the only penalisation’, that access was withdrawn from the computer systems, that he was isolated from meetings, that he became ‘the black sheep at work for having raised health and safety concerns and protected disclosure.

The Solicitor for the Complainant cited the Toni & Guy case and cited the ‘but for’ test outlined within it, saying that there was causal link in the chain of events which led to the Complainant’s ultimate dismissal.

A supplemental submission was submitted on behalf of the Complainant post hearing within the prescribed time-frame. It addressed the start date of the Complainant’s employment as being 8th September 2022, rather than 12th September 2022. The Solicitor for the Complainant sought to rely on the date on the final payslip (dated September 8th) as indicating the Complainant had 12 months service (as required under the Unfair Dismissals Act, without taking into account any notice period. However, she further submitted that the period of service was moot as the case came within the Protected Disclosures legislation. She disputed that the Complainant had engaged in misconduct and re-iterated on behalf of the Complainant that his case was that he had been dismissed on foot of making a protected disclosure.

Summary of the Respondent’s Outline Submissions

The Respondent is a supplier of washroom suits and serves a specialised medical market as well as the high-end office, industrial and public building market. The company produces plumbing ducts, cubicles and vanity units. The company also makes shower rooms and changing rooms, mainly for commercial and industrial building.

The Complainant commenced employment with a Respondent on 12th September 2022. He was employed as a ‘production planner.’

On or about 19th July 2023, at 16.05, the Complainant emailed Mark Connolly of the Respondent company stating:

‘I want to have a meeting where I can lay an official complaint against your consultant SO for unacceptable behaviour towards me and ask that future suggestions from SO regarding projects or outcomes be given in writing.

SO communicates to me in a threatening manner. Actual threats to my job have been made if I do not go along with this dysfunctional behaviour. I do not have the time for endless abusive messages with SO anymore. I have made a list of the incidences of threatening behaviour creating a toxic workplace environment for me. I am happy to comment on any suggestions he might have and request that any discussions problems with my performance as operations manager be put in writing.

I will not be further intimidated by SO. I am under severe pressure with staff shortages and promises made to customer. SO has no clear plan or has not to date put in writing any workable suggestion or strategy that I can perform with my limited resources.’

On 8th August at 12.10pm, Mr. Mark Connolly, on behalf of the Respondent, wrote to the Complainant acknowledging the Complainant’s grievance as against SO and provided the Complainant with a copy of the Respondent’s bullying and harassment policy. In the same email, Mr. Connolly outline the Respondent’s bullying and harassment policy.

On 8th August 2023, at 13:41, the Complainant emailed Mr. Mark Connolly indicating that his complaint against SO “does not go to bullying alone”. The Complainant set out  in his correspondence that:

“It is regarding having one-to-one meetings with no agenda where nothing is put in writing and then I get into situations where I am held responsible and blamed. If it was not for actual threats made against my job, it would be less serious.

·       In these meetings, I put forward plans of actions and discuss what I can and what I can’t do, and then everything is forgotten.

·       What I say in these meetings gets misrepresented or forgotten, putting me in a position where it’s my word against SO’s (serious complaint I want to discuss with you).

·       I am in a position where I am expected to be responsible for everything at the same time and blamed for what is not done and threatened.

·       Even if at the onset I say that we do not have the staff and I do not have the time to do everything SO expects me to do, all at the same time, in the absence of priority list and clear goals, and then SO resorts to threats or bullying and micromanaging me as well as interferes with production if he does not get what he wants.

·       My job description and what I am to be working on is more than one person’s job and I am happy to do what I can to help and what Post Formed Systems employees and clients request from me.”

On 9th August 2023 at 11:40, the Complainant emailed Mark Connolly stating:

“Just informing you of an incident that occurred at Post Formed Systems yesterday. One of our new employees [CC] was told to clean the canteen floor with thinners yesterday morning (08/09/2023). He ended up probably using too much. The office complained and he closed the door and stayed inside cleaning the floor without ventilation. He stayed inside for way too long. He got dizzy on the factory floor and nausea after that and left early. He was not in today. I phone him a while ago. He fainted at home yesterday and went to the hospital yesterday. He had splitting headaches and could not sleep last night. He was coughing up black he said. His throat was irritated and his nose was blocked. He is seeing his doctor again today at 15:00.”

On or about 21st August 2023, Mr. Mark Connolly wrote to the Complainant inviting him to an investigation meeting to discuss his grievance raised against SO.

On 22nd August 2023, the Complainant attended the meeting. At the meeting, the Complainant provided Mr. Connolly with a grievance document. The grievance document revealed that the Complainant had accessed commercially sensitive information, pertaining to the Respondent company, without lawful authority. It is submitted that the Complainant had committed a serious breach of trust and confidence.

It is respectfully submitted that the Complainant had engaged in misconduct that had significantly damaged the relationship of trust and confidence between the Complainant and the Respondent. Examples of the Complainant’s wilful misconduct include and are not limited to:-

(a)    Failing to perform his duties in accordance with the instructions of the Respondent.

(b)    Failing to furnish critical information in relation to production;

(c)     Failing to carry out his duties in accordance with the Respondent’s instructions.

(d)    Failing to follow the direction and instructions of the General Manager of the Respondent company.

(e)    The deletion of company information without lawful authority.

(f)      The accessing and reviewing of commercially sensitive company information without lawful authority.

Following the discovery of the fact that the Complainant had been accessing and reviewing commercially sensitive information in relation to the Respondent company, matters were brought to a head in relation to the Complainant’s employment. It is submitted that accessing and reviewing sensitive commercial information in relation to the Respondent amounted to a serious breach of trust in the eyes of the Respondent company. It is submitted that the Respondent formed the view that the continued misconduct on the part of the Complainant could no longer continue in the interests of the Respondent company. Consequently, on 5th September 2023, the Complainant was summarily dismissed with immediate effect.

The Respondent made submissions on the law in relation to the Protected Disclosures Act 2014.

Specifically, it has set out the definition of ‘relevant information’, relevant wrongdoings, and that under section 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.’

Counsel for the Respondent submits that ‘A helpful summary of the law on Protected Disclosures is provided for in a judgment of the Court of Appeal in Barrett V. The Commissioner of An Garda Siochana [2023] IECA 112, Ni Raifeartaigh J. at paragraph 114, provides that:

1. The communication must disclose some wrongdoing on the part of the employer; (s. 5 of the 2014 Act);
2. 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;
3. The communication must have some informational content; (s. 5, Baranya; CGI)
4. 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)
5. 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)
6. 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)
7. 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)
8. 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)
9. 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;
10. 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.

Disclosure of Relevant Information

It is respectfully submitted that in order for a communication to constitute a protected disclosure, it must be a disclosure of relevant information. It is fundamental that the relevant information, in the reasonable belief of the Complainant, tends to show one or more of the relevant wrongdoing, as set out in s. 5 of the 2014 Act.

Counsel for the Respondent cites Hogan J. in Baranya V. Rosderra Meats Group Ltd. [2021] IESC 77, wherein he stated that an Adjudication body must:

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

He further cites Celtic Working Platforms V. Cian Carlin, in which the Labour Court quoted with approval Babula V. Walthan Forest College [2007] ICR 1026, stating that:

“Provided (the Complainant’s) belief (which is inevitably subjective) is held by the Tribunal to be objectively reasonable, neither (1) the fact that the belief turns out to be wrong – nor, (2) the fact that the information which the claimant believe to be true (and may indeed by true) does not in law amount to a criminal offence – is, in my judgment, sufficient, of itself, to render the belief,”

In Barrett V. the Commissioner of An Garda Siochana * Anor [2023] IECA 112, ni Raifeartaigh J in considering the term ‘reasonable belief’ provided, at para 113, that:

‘…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 or she 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 or she 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.’

It is respectively submitted that the information provided in the email dated 9th August 2023 does not amount to a protected disclosure within the meaning of the 2014 Act. It is respectfully submitted that the email does not tend to show wrongdoing within the meaning of s. 5 of the 2014 Act.

Penalisation

Counsel for the Respondent cites the definition of penalisation as set out in s. 3 of the 2014 Act, and submits that the Complainant was not penalised within the meaning of the 2014 Act as the substance of the issues raised in the Complainant’s submission relate to the Complainant’s alleged interpersonal difficulties with SO.

The Complainant complains that he has ‘…difficulties with [SO].’ The Complainant states that “these difficulties compromised of micro-management, abusive, and threatening interactions, demanding impossible outcomes, and undermining [the Complainant’s] position and ability to perform his duties.”

It is submitted that the majority of Complainant’s grievance arise from his perceived inter-personal difficulties with SO pre-dating the Complainant’s alleged protected disclosure.

It is submitted that in order to establish penalisation the Complainant must establish a causal connection between the protected disclosure and the alleged instances of detriment suffered. In the matter of Aiden & Henrietta McGrath Partnership V. Ann Monaghan [2017] 28 E.L.R. 8, the Labour Court held that:

“Thus, the detriment giving rise to the complaint must have been incurred because of, in retaliation for, the complainant having committed a protected acct. This suggests that where there is more than one causal factor in the chain of events leading to the detriment complained of the commission of a protected act must be an operative cause in the sense that ‘but for’ the complainant having committed the protected act, he or she would not have suffered the determined. This involves the consideration of the motive or reason which influenced the decision maker in imposing the impugned detriment.”

It is submitted that the Complainant has not established any penalisation within the meaning of the 2014 Act. It is submitted that the Complainant has not suffered detriment as a result of the alleged actions of the Respondent whether as alleged or at all. It is submitted that the Complainant has not demonstrated any evidence in support of these allegations, and such allegations are vehemently denied by the Respondent.

Unfair Dismissals Act

Without prejudice to the foregoing, it is respectfully submitted that the Complainant does not have the requisite service to ground a claim pursuant to section 8 of the Unfair Dismissals Act 1977.

s. 1 of the 1977 Act provides that:

“date of dismissal” means –

(a)    where prior notice of the termination of the contract of employment is given and it complies with the provisions of that contract and of the Minimum Notice and Terms of Employment Act, 1973, the date on which that notice expires.

(b)    where either prior notice of such termination is not given or the notice given does not comply with the provisions of the contract of employment or the Minimum Notice and Terms of Employment Act, 1973, the date on which such a notice would have expired, if it had been given on the date of such termination and had been expressed to expire on the later of the following dates –

(i)                  the earliest date that would be in a compliance with the provisions of the contract of employment,

(ii)                the earliest date that would be in compliance with the provisions of the Minimum Notice and Terms of Employment Act, 1973.

s. 7 of the Minimum Notice and Terms of Employment Act 1973 provides that:

(1) Nothing in this Act shall operate to prevent an employee or an employer from waiving his right to notice on any occasion or from accepting payment in lieu of notice

(2) In any case where an employee accepts payment in lieu of notice, the date of termination of that person’s employment shall, for the purposes of the Act of 1967 be deemed to be the date on which notice, if given, would have expired.

In the textbook, ‘Redmond on Dismissal Law’, 2017 at [22.63] it is stated at paragraph 22.63 that:

“If a contract lays down a notice period, it will technically be a breach of contract to give pay in lieu of notice unless this right is reserved to the employer. If it is, and an employee accepts payment of wages in lieu of notice, the date of dismissal will be the date on which termination takes effect, as the contract will have been determined in accordance with its terms. If there is no right to give pay in lieu of notice in the contract, the EAT will treat the case as a ‘no notice’ one and will add on the contractual or statutory notice, whichever is greater.”

It is respectfully submitted that the Complainant’s contract of employment specifically provided that “we reserve the contractual right to give pay in lieu of all or any part of the above notice by either party.” It is submitted that that Respondent was entitled to provide pay in lieu of notice and consequently the date of dismissal is the date of termination of the Complainant’s contract. Consequently, the Complainant does not have requisite service within the meaning of the 1977 Act.

Further, and in the alternative, and without prejudice to the foregoing, the Respondent contends that the Respondent is not entitled to notice arising from the misconduct on the part of the Complainant.

s. 8 of the Minimum Notice and Terms of Employment Act 1973 provides that:

‘Nothing in this Act shall affect the right of any employer or employee to terminate a contract of employment without notice because of misconduct by the other party.’

It is respectfully submitted that the Respondent was entitled to dismiss the Complainant without notice. Consequently, the date of dismissal is 5th September 2023 and therefore the Complainant does not have the requisite service for the purposes of the 1997 Act.

Safety, Health & Welfare at Work Act 2005.

It is respectfully submitted that the Complainant complaint pursuant to s. 28 of the Safety, Health & Welfare at Work Act 2005 is misconceived. It is respectfully submitted that the Respondent has not breached s. 27 of 2005 Act, as alleged or at all.

At the hearing,

Mr. Mark Connolly took the oath and gave evidence on behalf of the Respondent company.

He outlined that he is the Managing Director and the majority shareholder of the business. He explained that the company manufactures specialised furniture, supplies and delivers; that on average 22-24 people work for the company – that includes everyone – administration, installing teams etc. as well as the manufacturing roles.

He outlined that 8/9/2022, that Complainant started working for the company as a production planner, that the company is a manufacturing organisation which designs, manufactures and installs non-standard furniture; and that the company has a mix of avenues through which different work/projects come to it across a variety of time-lines.

He explained that the Complainant’s role was to measure what was coming through the factory daily, weekly, monthly. He said that the company could have 24/25/26 projects in hand, at any one time. He said that the Complainant brought value to it when he started the role – it was a new planner role, prior to that, it had been a shared responsibility.

He was asked when issues arose. He identified 19/7/23 as ‘the issue’ - the point where SO and the Complainant began to have more aggressive disagreements. Subsequent to that, there was a complete breakdown between both men.

The Complainant reported to SO. The witness outlined that deadlines were the primary objective - meeting target deadlines, meeting site conditions (as missing them can have implications). He was asked if the company brought this to the Complainant’s attention? He said: ‘No.’ He said there was a weekly management meeting every Wednesday morning, where KPIs were set/discussed. He was asked whether the Complainant complying with that? He said: ‘Depending.’

He outlined that all of the company information is in Statii, that all the ERP is in that, and you ‘can see it.’

He was asked about the Complainant’s comments in relation to scheduling? He said: ‘Statii is our system – we’re living inside Statii, we’re working inside Statii.’

He said that the Complainant ‘ was using another system, of which he was the manufacturer.’ He said that created a situation where the company’s intellectual property now inside a parallel system the Complainant had manufactured himself.

The witness (MD) said that he told SO, the GM: ‘We are using Statii only. If it doesn’t produce the result, it doesn’t produce the result. We are not using any other systems in parallel.’

He said: ‘Manufacturing facilities use Statii – they are happy with the facilities.’ He said: ‘In the absence of a planner, [the Complainant] had good IT systems and we would have expected Statii to get better in the system; Quality (another person) was using Statii.’

‘Production Manager’ V. ‘Operations Manager’

He was asked in relation to the question of the Complainant’s title and whether the company had given the Complainant the title ‘Operations Manager’? He said that the Complainant ‘awarded himself the title’, that it was not given to him by the witness [MD], and not given by SO [GM].’

He said that the Complainant’s responsibility was ‘to plan the factory, to serve the sites as they are required, when they are required for our customers.’ He said: ‘A walk-down daily would be essential.’ He said the Complainant did that but ‘I don’t think he got the information that he required.’ He expressed the view that there was ‘no resistance from staff on the floor’, that they ‘saw the hiring of [the Complainant] as an asset.’

He said that there were three (3) avenues used to serve the company’s customers, and that he thought the Complainant had difficulty measuring those. He said the three avenues were:

-          Long duration projects – required in-depth planning

-          4/5/6 weeks works – required planning

-          Uninitiated works – required planning, required correct material, current material, resources on the floor etc.

He said: ‘There was a plan and the plan was governed by me and led by SO.’ He said that the goals were ‘to meet our targets; to meet our customer’s targets, and to improve our lead times, where possible’

Meetings

He said they held meetings and the message was ‘Have faith in me, have faith in SO – we are improving all the time.’ He said of the weekly planning schedule: ‘Projects were coming in on time, that they were meeting their targets, when they had a win – it was something to celebrate

The witness explained that the Complainant had a Diploma in Accountancy and asked to assist the company in 2023 with payroll for a short period – that may have lasted about (6) weeks. Then, the company outsourced payroll shortly thereafter. The witness addressed the issue of the Complainant’s access to Xero Accounting Software. He said that the Complainant had access to Xero with permission, for that purpose at that time but that there was no requirement for the Complainant to access Xero once payroll had been outsourced. He elaborated that in terms of planning, that an Excel document which lives on the PC, through the company’s clocking mechanism is used – hours calculated, time and a half is calculated, and notes are calculated – tells you what each employee is due.

He said that the Complainant had access to Xero, at the beginning, with permission; that he knew that the Complainant was using Xero (to help with the payroll for that short period of time) but that there was no requirement for him to use Zero in his production planner role.

The witness said that by July 2023, the relationship had broken down at that stage, that SO and the Complainant had a disagreement in the office. SO was looking for information as to what was coming out of the factory ‘today’. He said that he did not know what the exact words the Complainant used to SO.

He said that the Complainant approached the MD (the witness), that the Complainant was ‘in high temperature mode’, and that he ‘advised the Complainant to take leave.’ He said that ‘information was [starting] to get starved’, that ‘we did not know what was coming out of the factory, when it was coming out of the factory’, that there were ‘complaints from customers’ and the ‘plan appeared to be breaking down.’ He addressed the fact the Complainant said he was being asked to do impossible tasks. He identified a [named project] where he said requested information was not forthcoming from the Complainant. He further identified another [named] project which was described as a ‘very prestigious AI led project.’ He said that SO texted the Complainant to request the requisite information. The witness said the company ‘couldn’t plan, couldn’t advise the customer’ that the Complainant was ‘no longer doing his job, at that point.’

On 22/8/23, there was a 90 minute meeting with a HR advisory service, that the meeting was verbally acknowledged, and then they were on holidays. When they came back, advice was taken.  There was a meeting with the Complainant, the co-director of the company and the witness [the MD of the company] to establish the complaint. He said there was a formal agenda to that meeting, as presented by the HR advisory company he had consulted. He said that at the meeting: ‘“This has to stop” was the message that I got from [the Complainant].’ He said that ‘the problem seemed to be any instruction from [SO]  from that time and prior to that time was becoming undeliverable and incorrectly communicated.’ He said targets were becoming ‘unreadable.’

He was asked about the thirteen (13) page document – 14.07. He said that the focus and attention of the meeting, which was important, was ‘a grievance investigation meeting.’ He said of the bold print highlights that those were [the Complainant’s] opinion on how the company was performing. He said that he ‘took deep offence to Page 8 [of the thirteen (13) page document], which in my view is completely outside of his boundary and is not his job.’ He said that his thought was ‘Where did he access that information?’, that it could only be accessed through Xero because the company is a paperless organisation, with those functions contracted out.

He said that he had been MD for twelve (12) years, that he had thirty (30) years practical experience, that it was a family organisation and that it was ‘very well run’, that it was a local organisation and a local employer. He described himself as ‘deeply offended by the content of the thirteen (13) page document’, saying of the Complainant that he was ‘telling me how to run my business.’

He said it had ‘nothing to do with the context of the differentiating meeting.’ He said that the thirteen (13) page document was ‘handed to me’, and the ‘material in that document - I had to reflect on the document, which had no impact or purpose to contribute to the grievance meeting.’

He said that ‘who works for the Connollys, who works for the company, [the Complainant’s] opinion was not needed in that context whatsoever.’ He outlined his view of the chain of command which was that it was his role to ‘plan, organise, lead and control’ and to ‘advise the GM accordingly.’

He expressed the view that he should not have received the document he did from ‘a planner’, and that the Complainant ‘did not have boundaries in dealing with people.’

He said that he ‘sought legal advice on the thirteen (13) page document’, that ‘we had a directors meeting’ and ‘made our decision based on that meeting.’

He said that ‘the fundamental point as to why the relationship could not continue was’ that there was ‘no trust.’ He emphasised: ‘No trust.’

He said that the document was ‘very detailed’ and that it contained ‘a lot of intellectual property’ of the company. He said ‘to have a person who is in my company to have very strong opinion like that, less than twelve (12) months in employment, to populate that, it’s too deep for me, too deep for the company.’ He said ‘[the Complainant] was not doing the job he was paid to do.’ He ‘became an impossible planner in the end.’ He said that when the Complainant was complying with the request for critical information, he was providing the information the company needed but in the Complainant’s form. Mr. Connolly said he ‘didn’t want separate opinions’, that he ‘didn’t want separate systems run in parallel.’ He also highlighted the issue of deletions off the computer on 17/8/23, information that he does not know what it is, and has been told cannot be recovered

Trust

In relation to the issue of trust, he said that ‘[the Complainant’s] difficulty in planning our factory for our customers - he just couldn’t manage all the different variants to him at the end of the day. His plan became one that was only okay at the end of the week or the end of the month. His planning system was failing.’ He said that ‘From July onwards, the trust was breaking down; the skill was disappearing and the plan was failing.’ He particularly objected to the invoices to SO which he described as company intellectual property being reviewed or accessed by the Complainant. He said there was no reason for the Complainant ‘to be scrutineering, examining or forming an opinion on it.’ He said: ‘It wasn’t his place to go. He’s a production planner.’

He was asked why did you form the view in relation to the termination of the Complainant’s employment. He said: ‘I didn’t want him to continue in his employment.’ He again highlighted ‘alternative IT systems’, ‘forming opinions on the company’

On Cross-examination

The witness was asked in relation to the issue of the job title, why the company had not reprimanded or disciplined the Complainant. He said that they did address it, that they (both the witness and SO) verbally asked him to change it back. He was asked about the raise. He said that it was on the basis of the Complainant’s performance, that for ‘the first six months, progress was being made.’

A review [Page 29 of the booklet of documents] from the General Manager to the Board, was put to him.  

The events of July 19th were put to him. The witness said that he was not there for those conversations. Nothing was in writing. He was ‘made aware of them.’  [Adjudication Officer’s Note: SO was not called as a witness.]

Again, the problems with OneDrive were highlighted. Over the summer period 2023, and in the months building up to that. The witness emphasised that ‘last summer’, ‘we could not get [an answer to the question] what was coming out of the factory today?’

In terms of the time-line, the witness said that the disagreement occurred since July 19/7/23 and people were on leave in early August.

It was put to him that he didn’t want any deviation from Statii; and that ‘you didn’t like to be told how to be told how to run your business?’ He said that was ‘Correct.’

He was asked if that were the case even if that meant a company loss. He said: ‘We were happy with the system. I wasn’t looking for Utopia, just progress.’

He was asked about staff morale. He said it was ‘good.’ It was put to him that the Complainant disputed that. He outlined that he had longstanding members of staff with over thirty (30) years’ service, some with forty-two (42) years.

He was asked about hitting targets. He said: ‘Not all the time but close - it might run over by a week.’ He talked about there being ‘too many moving parts, plan had to be combed out every day, to meet the customer’s objections, outside factors.’

The witness was asked about the grievance investigation meeting (the meeting where he was handed the thirteen (13) page document). He said there was ‘nothing to do’, that ‘trust’ was the answer to the question. He was asked where the breakdown in trust happened. He said that it was not the place of the Complainant to form to an opinion on P&L (profit and loss).

It was put to him that ‘whistleblowing’ was the term the Solicitor for the Complainant would use to characterise the matters raised by the Complainant, for example, the incident on the floor, that it was a protected disclosure. He was asked whether the document related to bullying and harassment? He said: ‘Possibly.’ It was put to him that by relaying the incident which had occurred in the factory on the August bank holiday weekend, that the Complainant was making a protected disclosure. He said that the thirteen (13) page document outlined the Complainant’s concerns/complaints about ‘how the company is being run, which I view as a criticism of me, as Managing Director.’

The witness was asked whether he considered appointing an independent investigator? He said: ‘I did reflect on it, but I had made my decision, and I stand by it.’

He was asked about page 51 of the company policy, and he was asked whether that policy was followed. He said: ‘To the best of our ability.’

He was asked about the investigation conducted, and whether SO was interviewed and if there were any notes. It was put to him that there were ‘no notes’, that it was ‘verbal, as well’. It was highlighted to him that here were no notes from the interview with SO but there were notes from the Complainant’s interview. The witness said:  ‘It was not his [SO’s] responsibility. It was my responsibility.’

He was asked if he was close with SO. He said: ‘No.’ He was asked if SO still worked for the company. He confirmed that he does: ‘Yes.’

The witness was asked if the Complainant was afforded a right of appeal. He said that he was not. He said: ‘I formed an opinion and made a decision.’ He re-iterated that the Complainant’s opinion of the company and how it was being run represented a breakdown in trust, which he perceived to be irreparable, in addition to the other matters identified – including the deletion of information on 17/8/23, that the company has been told is ‘unrecoverable.’ He was asked what that information was. He said: ‘Don’t know.’

It was put to him that he did not give him a right of appeal because he did not want the Complainant back. A number of questions were put in relation to why the witness had made the decision he did. On foot of an objection from Counsel for the Respondent that the line of questioning was straying into the area of legal privilege, the Adjudication Officer clarified for the witness that he was entitled to assert legal privilege in relation to some of the questions posed, which he did.

The witness was asked why he did not respond to the Complainant’s follow up email. He said that the Complainant had ‘left the company.’

It was put to him that he had also not complied with the Data Subject Access Request (DSAR) and that he had a legal obligation to provide that information, on request.

On re-direct

The question of the Complainant’s performance until the performance review was put to him. He acknowledged it to be good. He was asked if there were any issues? ‘No.’ He added that ‘[the Complainant’s people skills were noted on the probationary/pay-raise review.’

He was asked whether the incident with the paint thinners was a prohibited act? He said: ‘No.’

He was asked whether there was any wrongdoing arising from the Complainant’s complaint? He said: ‘No.’

It was put to him that there were inter-personal difficulties [with SO]. He agreed.

Closing Statement on behalf of the Respondent company

Three complaints were filed.

1.       The complaint under the Protected Disclosure Act requires the disclosure of ‘relevant information’, which Counsel for the Respondent submitted was simply ‘not here, for the purposes of the 2014 Act.’  He submitted that this is simply not a situation – floor thinners, without ventilation – that meets the requisite standard. He said that there was ‘no evidence whatsoever, no particularity for the purpose of relevant wrongdoing.’ He said that there was a requirement under the legislation that it was in the ‘reasonable belief of the worker that it tends to show [one or more] relevant wrongdoings’, e.g. a breach of a legal obligation/statutory duty. He re-iterated that there was no evidence whatsoever that that was the case here. He submitted that a bald statement is insufficient, that the Complainant had not specified or particularised that very well in his evidence. He said that he was arguing that ‘it doesn’t meet the threshold.’ The email of 9/8/23 is what the Respondent understood to be the putative ‘protected disclosure.’

He further submitted that in terms of ‘relevant information’, citing the case of Baranya at paragraph 43, he emphasised that the complaint ‘does not have specific factual content and specificity.’

Finally, citing Barrett V. An Garda Siochana, paragraphs 111-114, he submitted that there has to be a link between the protected disclosure and the penalisation.

2.       In relation to the claim for unfair dismissal (as penalisation), he said that the claim was the Complainant had been dismissed for making a complaint, which was not true. 

He submitted that the Complainant accessed ‘commercially sensitive information’ for the purpose of putting information before the company. He submitted that the Complainant had a personal grievance in relation to inter-personal difficulties between him and SO, who was paid by way of invoice. The Complainant made the point that the company could save money by not paying SO, which went above and beyond [the scope of the Complainant’s role]. That was the reason and those were the circumstances in which the Complainant was dismissed. No procedures were used. In the circumstances, the company, it was submitted, had to terminate his employment. The Complainant went above and beyond his position/station. He was using software that he had no permission to use, no lawful authority to use.

He said that the initial row erupted in July 2023, that the Complainant had a difficulty in terms of the strategic direction SO was taking the company. SO wanted the company to use Statii. The Complainant did not agree with that – he was using a spreadsheet, saving it to his (own) system. He retained that, having created the ‘engine’ behind that himself.

It was submitted that whether the company was wrong or right in its decision/choice of software, the Complainant did not follow legitimate instructions in relation to that.

The termination of employment had to happen when the issue of trust became an issue. He particularly highlighted the last two paragraphs of page 8 of the thirteen (13) page document submitted – saying that it pertained to commercially sensitive information in relation to company.

3.       SHAW Act complaint [thinners only]. Counsel for the Respondent submitted that in relation to the third complaint, filed under the SHAW Act – that s. 27(3) requires adjudication on that. He submitted that no wrongdoing under the SHAW Act 2005 had occurred. [TAB 12] He submitted that no wrongdoing has been identified in the evidence that would fall within the 2005 Act. He said that the evidence was that the Complainant was not dismissed due to the email of the August 9th nor his grievance raised against SO.

In response to some queries from the Adjudication Officer, Counsel for the Respondent submitted, in relation to SO, that while he was being paid on an invoice basis, he was managing staff within the company. For the purposes of the 2014 Act, he falls within that [s. 5A]. He managed the day-to-day operations, reported to the Board, and the Complainant reported directed to him.

In relation to the correct date of termination he submitted that the correct date of dismissal was 5/9/2023, that it ‘takes effect at the stage.’ He submitted that the Complainant’s evidence was that he started work on 8/9/2024, physically started working on 8/9/2024. He said that he was relying on s. 8 of the Minimum Notice and Terms of Employment Act 1973 (misconduct), i.e. that the Complainant was not entitled to notice due to his misconduct. He received pay in lieu of notice, in line with the terms of his contract. Counsel for the Respondent said that there was not a statutory bar to him relying on s. 8 of the Minimum Notice and Terms of Employment Act 1973.

At the request of the Adjudication Officer, he submitted a supplemental submission post-hearing on the two legal points raised:-

1.       Correct date of dismissal (and how that interacts with notice/payment in lieu of notice).

2.       Whether SO (given he is a consultant and not an employee) comes within the auspices of s. 5A of the Protected Disclosures Act 2014.

I find that trust and confidence broke down between the Complainant and the Respondent company, when the Complainant in essence tried to effect a coup within the company.

In terms of the claims submitted, I find that no ‘relevant information’ was disclosed, i.e. that the issue of a protected disclosure falls at the first hurdle, that there was therefore no protected disclosure and no penalisation on foot of a protected disclosure. It is common case between the parties that there was an increasingly fractious relationship between the Complainant and the person to whom he was reporting, SO. The genesis of this appears to be that the Complainant had different ideas as to how the company should be run and had a difficulty with the strategic direction in which the company was being taken.

I accept the evidence given on behalf of the Respondent company that the Complainant did not comply with reasonable management instructions, awarded himself a title the company had not given him, and saved things to his own system (one he had created) rather than the one he was required to use and which the company could access, all of which caused alarm to the company, especially when it could not ascertain the required information in the required time-frame, as requested and needed. I further accept that the Complainant accessed information – the Respondent company is characterising this as ‘sensitive commercial intellectual’ information – for which he had no reason to access, and then sought to use that information to put to the MD an entirely different strategic direction for the company, dispensing with his direct boss altogether. [This is the ‘grievance’ document the Complainant submitted.] I note the company’s concern in relation to the deletion of information which it has been advised is unrecoverable, also.

The document the Complainant submitted at the grievance meeting sought to have the owner of the company choose him and his ideas as to how the company should be run, over the person to whom he reported, SO, and the strategic direction that person was employing, who was an external Consultant. The person to whom he reported was not a direct employee and he invoiced the company for his services. At the hearing, the Complainant characterised SO, in his evidence as ‘massively expensive’, ‘useless’ and a ‘parasite.’ It was the Respondent company’s view that the Complainant had accessed sensitive, personal, commercial data, entirely beyond the scope of his role – he was a production planner - and sought to use it in a manner than was objectionable and alarming. This caused an irreparable rupture in trust and confidence between the Respondent company and the Complainant. I find that it was, on foot of that, and not anything else, that he was dismissed.

In relation to the unfair dismissal claim, on its own merits (as opposed to under the auspices of penalisation on foot of a protected disclosure), I find that the Complainant lacks the requisite service to file a complaint. I am guided by the Labour Court decision in Fyffes Tropical Ireland Ltd V. Loui Osman UDD2413, in that regard.

CA-00059162-001 – I find that this complaint is not well founded. I am satisfied the information identified as ‘relevant information’ was not relevant information for the purpose of the Protected Disclosures Act 2014, and that this claim therefore falls at the first hurdle. I am further satisfied that it did not tend to show ‘relevant wrongdoing’ as defined, but rather the grievances and difficulties between the Complainant and his manager were interpersonal in nature, and come within s. 5A of the Protected Disclosures Act 2014 (as amended). I am further satisfied that, in any event, this was not the reason for the dismissal. It did not arise out of the putative protected disclosure, i.e. there was no causal link, (applying the ‘but-for’ test).

CA-00059162-002 – I find that this complaint is not well founded. In the first instance, I am satisfied that the Complainant was not penalised on foot of a protected disclosure as I am satisfied that there was no protected disclosure (as per my finding in CA-00059162-001).

I further find, that in the matter of an unfair dismissal simpliciter (i.e. one arising from substantive or procedural unfairness, on its own merits, and not as part of penalisation on foot of a protected disclosure), the Complainant does not have the requisite service under the Unfair Dismissals Act 1973 to file a complaint for unfair dismissal. I find that the correct date of dismissal is 5/9/23 – I am guided by the reasoning of the Labour Court in Fyffes Tropical Ireland Ltd. V. Loui Osman UDD2413.

CA-00059162-003 – I find that this complaint is not well founded. In particular, I am satisfied that, on its face, there is nothing within the email of 9/8/2023 that would give rise to a prima facie claim which would give rise to a case under the Safety, Health & Welfare at Work Act 2005.

Protected Disclosure; Penalisation; Unfair Dismissal; SHAW Act 2005;

Complainant

Respondent

Parties

Pieter  Joubert

Post Formed Systems Ltd

Representatives

Seán Ormonde & Co. Solicitors

Denis Collins BL instructed by McCoy Solicitors

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-00059162-001

02/10/2023

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00059162-002

02/10/2023

Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005

CA-00059162-003

02/10/2023

It is the Complainant’s case that he was unfairly dismissed. He submits that the dismissal represented penalisation, in the context of him making a protected disclosure. The Complainant was hired in September 2022 and summarily dismissed on September 5th 2023. [Clarification as to the correct start date was sought by the Adjudication Officer as there was dispute between the parties.]

He submits that there were issues between him and the General Manager, SO, to whom he reported, which worsened from July 2023 onwards.

Six (6) months into his employment, the Complainant received a job offer elsewhere, brought it to the company’s attention, and was given a pay raise (from €36,000 to €52,000).

The Complainant identified the issues between him and SO as including abusive language, threatening behaviour, and bullying and harassment. He submits that matters worsened in July 2023. He submits that his protected disclosure pertained to health and safety, and also bullying.

His first formal grievance went into Mr. Connolly [the Managing Director and majority shareholder of the company], about SO, in August 2023. The Complainant submits that a grievance meeting was held on 22/8/2023 but there was no outcome and no right of appeal. He submits that after this meeting, his computer passwords were taken and his access to the systems was restricted. He submits that he was excluded from a staff meeting also. He submits that he was summarily dismissed without reason on 5/9/2023. He sent a follow up email on 6/9/2023 and received no response.

The Complainant was out of work for a period of one month (until 9/10/2023), before taking up a new position at €36,000 (€16,000 less per annum that the role he held for the Respondent company post pay-raise]. The Complainant worked for that company for thirteen (13) to fourteen (14) weeks. He was then out of work again for a period of six (6) weeks before he found work with his current employer also at €36,000 per annum.

The Complainant calculates his services as including his notice period (for which he was paid in lieu of notice) and submits that brings the period of his service in excess of 55 weeks, i.e. over the 12 month requirement under the Unfair Dismissals Act 1977.

The Respondent company denies the Complainant’s claims. It submits that there was no protected disclosure, that what the Complainant has identified as his protected disclosure (email of 9/8/23 pertaining to paint thinners) is not ‘relevant information’ for the purpose of the 2014 Act, and therefore, the allegation of a ‘protected disclosure’ falls at the first hurdle. It therefore follows that there was no penalisation for a protected disclosure. The Respondent submits that the reason for the dismissal did not arise from his email of 9/8/2023, which is what the Complainant says is the ‘protected disclosure.’ It further submits that the interpersonal difficulties between the Complainant and SO, which come with the remit of s. 5A of the 2014 Act.

The Respondent submits that the date of dismissal 5/9/2024, and cites the Labour Court case of Fyffes Tropical Ltd. V. Loui Osman UDD2413 in relation to how to correctly determine the ‘date of dismissal’ in the Unfair Dismissals Act 1977. [If it is deemed a penalisation – service does not apply.]

In relation to the third complaint the Complainant has filed – a complaint under s. 28 Safety Health & Welfare at Work (SHAW) Act – it is submitted that a matter of adjudicated under s. 27 would be a health and safety issue, pertaining to a breach of the statutory requirement. The Respondent submits that, there is nothing on its face within 9/8/2023 email that would give rise to a prima facie claim which would give rise to a case under the SHAW Act.

The Adjudication Officer gave both sides an opportunity to make a supplemental submission after the hearing on two legal points which arose. Within 10 days  of the hearing, the Respondent, at the request of the Adjudication Officer, was to submit:-

1.       The Complainant’s payslip – this pertained to start date, and correctly determining the length of the Complainant’s service.

2.       The thirteen (13) page grievance document [a photocopying error meant that the copy of that originally submitted was incomplete]

3.       A supplemental submission addressing:-

-          The issue of notice in the matter of determining the correct ‘date of dismissal’ under the relevant legislation and the correct length of the Complainant’s service

-          S. 5A of the Protected Disclosures Act: Whether the person to whom the Complainant reported, SO, came within the scope of that definition given he was an external consultant rather than an employee.

The Complainant was given a right of reply, within a further two-week period to submit his own supplemental submission, addressing the two identified legal points.

Summary of the Complainant’s written submissions

The Complainant was employed by the Respondent as an Operations Manager from 9th September 2022 until his dismissal on 5th September 2023. At the time of dismissal, his gross salary was €52,000, having been increased from €36,000 in March 2023. (His contract of employment is exhibited at Tab 2). It is submitted that the Complainant was dismissed without reason by the Respondent on 5th September 2023.

It is his submission that over the first number of months with the Respondent, it became evident to the Complainant that the internal workings of the company were not being managed effectively. In particular, the Complainant began to have difficulties with SO (General Manager). It is submitted that these difficulties comprised of micro-management, abusive and threatening interactions, demanding impossible outcomes, and undermining the Complainant’s position and ability to perform his duties. Amongst these interactions, of note were the following occasions:-

a.       In early June 2023 on the factory floor with MT (foreman) and other factory staff to witness, SO advised the Complainant in an aggressive tone that “[Named Person] is not to touch the beam saw if [the Complainant] wants to keep his job”. It is submitted that the instruction was unreasonable since that [Named Person], was the only trained operator of the beam saw in attendance that day and was available to assist at the time.

b.       In or around the start of July at a meeting wherein the Complainant raised several issues with SO, SO told the Complainant to “shut the fuck up”, continually interrupted him and shouted repeatedly at the Complainant. This was not one occasion but rather general behaviour which was directed at the Complainant on multiple occasions in various meetings. It is submitted that when the Complainant disagreed with something or raised a concern in an open meeting, SO would say: "Would you shut the fuck up" in front of others. This happened multiple times in informal meetings.  It is submitted that if SO perceived he was being interrupted he would shout:" I'm talking!" or he would interrupt the Complainant by shouting: "Stop".

c.       It is submitted that on or about 7 July 2023 the Complainant was instructed that he “better start managing the factory” by daily production per cell to which the Complainant protested that it would literally require the micromanagement of every single employee in the organisation, which was impossible. The response to this was in a threatening and intimidating tone that “that was the [Complainant’s] job”, that he wanted to know what we expect daily per production cell and that the Complainant better ‘start doing it fucking quickly” and then walked away.

It is submitted that on 9th August 2023, the Complainant made a protected disclosure to the owner, Mr. Mark Connolly, to report an incident that occurred the previous day where a new employee was instructed by the foreman to clean the canteen floor with thinners. It is submitted that the Complainant was purposefully excluded from subsequent meetings held regarding this incident, which speaks to undermining his position as the Operations Manager.

Despite this, it is submitted that the Complainant made every attempt to conduct his role to the best of his ability but submits that certain ingredients for the successful management of the company were lacking, in particular, employee morale and understaffing. In March of 2023, the Complainant decided to seek employment elsewhere. When he received an offer from another company, he brought this to SO and attempted to hand in his notice. SO advised the Complainant that they wanted him to remain in employment with the Respondent, that the Respondent was going to increase his salary from €36,000 per annum to €52,000 per annum, and introduce an incentive scheme for all production and office staff to improve morale for all employees.  Additionally, SO promised to hire more staff to enable the Complainant to perform his job properly. When relying on the said promises including the substantial potential incentives, the Complainant turned down the other job opportunity. It is submitted that this is reflected in the Complainant’s self-assessed probation report and the Respondent’s assessment of him of 10th March 2023. It is submitted that the report generally is very positive with the exception of some observations from SO, which the Complainant characterises as being unfair.

Furthermore, it is submitted that in July 2023 during a meeting, SO advised the payroll administrator to provide a raise to a particular employee AD. In July 2023, SO then instructed the payroll administrator to reverse the said raise and advised AD that her raise was given due to an error on the Complainant’s part.

It is submitted that the ongoing expectation for factory management without planning or resources lead to the Complainant lodging a formal grievance.  The following issues formed part of his grievance:

a.       On or about 7 July 2023 the Complainant was instructed that he “better start managing the factory by daily production per cell, and he better start doing it fucking quickly”. The Complainant was not afforded an opportunity to respond to this.

b.       In a meeting held on 19th July 2023, SO tasked the Complainant with managing and planning factory production per work cell, with a focus on measuring and comparing the performance of each work cell to the planned performance. While the Complainant agreed with this approach, it is submitted that SO’s primary focus was on the desired outcome of the management system, overlooking the necessary steps and resources needed for implementation. The Complainant discussed the detailed roadmap for tracking and comparing production units in the manufacturing process, highlighting the missing components required for implementation. Despite the Complainant’s efforts to communicate these missing components, SO insisted on immediate reporting from a system that did not yet exist, failing to acknowledge the steps needed for implementation. In numerous discussions held with SO, the Complainant emphasised the need for restructuring the manufacturing floor, updating the product structure in the ERP system, and effectively allocating human resources to the production cells and the additional hours and efforts of all key employees currently over committed, all of which were required for proper implementation of this system. The executable project plan would have required management approval and support to implement, none of which was provided.

c.       It is submitted that after the above 90-minute contentious discussion where no new facts or statements were introduced, and no new ideas or plans emerged, the Complainant decided to discontinue verbal discussions. It is submitted that SO repeatedly ignored, misrepresented, or forgot previous discussions, and refused to recognise the challenges associated with implementing the system for reporting and production management. It is submitted that the Complainant also felt increasingly antagonised and misrepresented during verbal communications and began to suspect that SO was actively trying to be unhelpful and to target him. Consequently, the Complainant requested that all future communication from SO be in written format to clearly convey his requirements and reduce the risk of misrepresentation and antagonism. (Tab 5-Draft Road Map Commenced 10th October 2022; Tab 6-Ongoing Expectations Explained in Technical Terms).

d.       It is submitted that after the Complainant dismissed himself from the meeting, SO lost his temper and called the Complainant back into the office, shouting that he was not to leave. With the office door open, the office staff could hear this part of the interaction. The Complainant responded that SO would not speak to him like that and that such behaviour needed to stop immediately. (Tab 7- Email thread between Complainant and SO.)

It is submitted that as a result of the above meeting on 19th July 2023, and ongoing bullying and harassment of SO, together with (what the the poor management of the Respondent company under SO’s direction as acting Managing Director, on 19th July 2023 the Complainant raised an official grievance to the owner of the Respondent, Mr Mark Connolly. (Tab 8 - Emails 19th July) The Complainant made a further complaint against SO to Mr Connolly on 2nd August 2023. (Tab 9-Complaint SO) Mr Connolly reverted on 8th August 2023 wherein Mr Connolly replied with the Respondent’s bullying policy. (Tab 10 - Email from Mr. Connolly 8th August 2023) On 18th August, the Complainant was asked to give his computer password to Mr Connolly. On 21st August, the Complainant was invited to an alleged grievance hearing to be held the following day. (Tab 11-Invite to Grievance Meeting 21st August 2023) The said meeting took place on 22nd August. In attendance were the Complainant, Mr Connolly, and Ms. Susan Connolly (Mr. Connolly’s sister) as a note taker. (Tab 12-Minutes of Meeting) During the meeting, the Complainant handed Mr Connolly a document which outlined his concerns and provided suggested ways forward for the parties. (Tab 13-Document Outlining Concerns – the 13 page document) It is submitted that Mr. Connolly took offence to this document and immediately sided with SO (in what was intended to be a fact-finding, investigatory meeting from a grievance raised by the Complainant). When the meeting finished, the Complainant never received any further information about his grievance before he was dismissed. From the end of the said alleged grievance meeting, the Complainant’s access on company systems was restricted. He was no longer able to access any HR Folders (despite having HR functions) and was also locked out of the Respondent’s Xero Accounting Software (also crucial in the conduct of his role). The Complainant was also excluded from meetings he should have been involved in; namely on 14th August and 18th August (at which SO and Mr Connolly attended along with the full office-staff compliment).

On 5th September 2023, the Complainant was invited into a meeting by Mr Connolly and dismissed without reason or warning. He was simply advised by Mr Connolly that the Respondent did not “need your services anymore”. He was paid four weeks of notice, putting his length of service at 55 weeks and 3 days (one year, three weeks and three days). He was not granted with any right of appeal of this decision. (Tab 14-Final Payslip) Immediately following the meeting, the Complainant was escorted by the Quantity Surveyor, TB, to his desk to clean his belongings out and was then escorted from the property.The following day, on 6th September, the Complainant emailed Mr. Connolly to ascertain the reason for his dismissal. (Tab 15-Email Reason for Dismissal Query 6th September 2023) To date the Complainant has had no further correspondence from the Respondent, no outcome to his grievance, no appeals mechanism to his dismissal and has been penalised through exclusion at meetings, verbal abuse and ultimately his dismissal as a result of making a protected disclosure to the Respondent.

Summary of the Law the Complainant is citing

Penalisation.

The Complainant was penalised for making a complaint under the Safety, Health and Welfare Act 2005.

Section 27(3) of the Safety Health and Welfare at Work Act provides that,

“An employer shall not penalise or threaten penalisation against an employee for—

                                                               i.      acting in compliance with the relevant statutory provisions,

                                                             ii.      performing any duty or exercising any right under the relevant statutory provisions,

                                                           iii.      making a complaint or representation to his or her safety representative or employer or the Authority, as regards any matter relating to safety, health or welfare at work,

                                                            iv.      giving evidence in proceedings in respect of the enforcement of the relevant statutory provisions,

                                                             v.      being a safety representative or an employee designated under section 11 or appointed under section 18 to perform functions under this Act, or subject to subsection (6), in circumstances of danger which the employee reasonably believed to be serious and imminent and which he or she could not reasonably have been expected to avert, leaving (or proposing to leave) or, while the danger persisted, refusing to return to his or her place of work or any dangerous part of his or her place of work, or taking (or proposing to take) appropriate steps to protect himself or herself or other persons from the danger.”

In Paul O’Neill v Toni & Guy Blackrock Limited [2010] ELR 21, the Court held that the detriment complained of must have been imposed for having committed a protected act within the meaning of Section 27(3) of the Act:‘The detriment giving rise to the complaint must have been occurred because of, or in retaliation for, the Claimant having committed a protected act. This suggests that where there is more than one causal factor in the chain of events leading to the detriment complained of, the commission of a protected act must be an operative cause in the sense that “but for” the Claimant having committed the protected act he or she would not have suffered the detriment. This involves a consideration of the motive or reasons which influenced the decision maker in imposing the impugned detriment.” In this matter, it is submitted that it is evident per the above timeline of events that the mistreatment of the Complainant arises from his reporting to Mr Connolly, breaches of the Act, together with his attempt to exercise his right to a safe place of work, and his entitlement to raise a grievance.

Protected Disclosures

The Protected Disclosures Act 2014 provides,

“employee” has the meaning given by section 1 of the Unfair Dismissals Act 1977 and includes an individual who is deemed to be an employee by virtue of subsection (2) (a).” 

2.       The Act and it also defines a worker in the following terms,

“an individual who—  

(a) is an employee,  

(b) entered into or works or worked under any other contract, whether express or implied and (if it is express) whether oral or in writing, whereby the individual undertook to do or perform (whether personally or otherwise) any work or services for another party to the contract for the purposes of that party’s business,

(c) works or worked for a person in circumstances in which—  

(i) the individual is introduced or supplied to do the work by a third person, and  

(ii) the terms on which the individual is engaged to do the work are or were in practice substantially determined not by the individual but by the person for whom the individual works or worked, by the third person or by both of them…”

The Protected Disclosures Act 2014 (hereinafter referred to as the 2014 Act) defines a “protected disclosure” as being a “disclosure” of “relevant information.” Section 5(1) of the 2014 Act states that information is considered to be “relevant information”,

1. 1. in the reasonable belief of the worker, it tends to show one or more relevant wrongdoings, and
   2. it came to the attention of the worker in connection with the worker’s employment.” (Section 5(2)).

The 2014 also defines “wrongdoing” as follows:

“(a) that an offence has been, is being or is likely to be committed,

(b) that a person has failed, is failing or is likely to fail to comply with any legal obligation, other than one arising under the worker’s contract of employment or other contract whereby the worker undertakes to do or perform personally any work or services,

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

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

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

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

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

(h) that information tending to show any matter falling within any of the preceding paragraphs has been, is being or is likely to be concealed or destroyed.”

It is respectfully submitted that the Complainant has suffered a detriment in his poor treatment, dismissal, and being refused due process and natural justice in the hearing of his grievance.

At the hearing,

The Complainant Mr. Joubert took the oath and gave evidence on his own behalf.

He outlined that he was initially hired as a production planner on 11/9/2022, that he started working there the day of interview. He said that he quickly realised he was not the production planner, that he was the operations manager. He said that everyone reported to him. [He listed the names of some employees.]

He said that there was a large staff turnover, that there were approximately nineteen (19) people but the number was reducing. He was asked when he started experiencing issues. He said that there were pervasive issues. He described the workplace as ‘dysfunctional’, that he had never been in a company with ‘such low staff morale’ or more ‘turnover’. He said that there were aging machines, that there was ‘no real stock control’, that the ‘ERP didn’t reflect in real time the changes in stock.’ He was critical of how things were managed on the factory floor. He said there was ‘a consultant in before’ and that ‘they never got it right.’ He said he had to ‘try to figure out a way’ to have drawings approved by clients and have them approved by the drafts-people.

He was asked about the atmosphere. He said that it was ‘adversarial to say the least.’ He said that the ‘guys on the factory floor thought I was going to be SO’s henchman.’ But he said that he ‘just wanted a system that worked’, that he ‘had a vision of what we wanted to achieve over time’, that he was ‘introducing what SO suggested.’ He described ‘scope-creep’, ‘the more things we got involved in, the more things we had to get involved in.’ He said that there was ‘great uncertainty’, that there was ‘a bottle neck’, that there was ‘six (6) months of orders’ but that ‘they didn’t have more than a week’s work (drawings) to send down to the factory floor’, that the ‘office [was] always lagging behind the factory floor.’ He said that there were not enough drafts-people, some were only working part-time at night, and in a bid to address that, the hiring wage was increased, in conjunction with the foreman.

He was asked what the impact, if any, of the circumstances he had outlined was. He said that it was ‘a high stress environment’, that he was ‘responsible for these targets you can’t meet’, that it resulted in having to deploy ‘hand-drawing’, that the experience was one of ‘stress’, of ‘flying blind’ and of ‘urgent jobs being put to the start’, that ‘there was no system in place.’

He was asked how he would raise an issue. He said that he and SO ‘always had discussions regarding what we currently need to do.’ He outlined looking at the turnover for the week being a ‘stable enough’ basis for them to forecast the future.

He said that SO ‘had a lot of fanciful ideas’ that were ‘not practisable.’ He said that one of the problems was SO ‘not putting anything in writing.’ He gave the example of the idea to redesign the stock area but never having enough employees to do it, and that the stockman was out doing delivers [due to being understaffed]. He said that SO was ‘almost constantly complaining about everything’ and that the Complainant was ‘pushed to breakpoint.’ He said that the result was the risk of ‘balls’ being ‘dropped.’

He was asked about the ‘Protected Disclosure.’ He said that it was a bullying complaint. He said that he gave Mr. Mark O’Connell the grievance document. He said that ‘not only is SO being a bully towards me, but being a bully in general.” He gave the example of the employee, CC, ‘with the thinners incident.’ He said that verbally, he was spoken to ‘like you’re nothing’, being told ‘Stop! I’m talking’ by SO in meetings. He said: ‘I don’t mind much of that because it does not influence my day-to-day.’ He said he was being told: ‘You’ve to do this, this and this – you better start doing that, and do it fucking quickly…’

He said that after he brought the bullying complaint to Mr. Mark Connolly, that he received a response about a week later, that he was asked whether wanted to deal with it formally or informally, and he elected formally.

He outlined a pattern of being undermined. He said that SO ‘made it look like I was the person who made the mistake.’ He said that ‘this started looking really threatening to my own job.’ He gave me the example the change to [a named employee’s] pay. He explained how their rate was increased and then, after the change, it was changed back again. He said ‘SO blamed that on me.’ He said that luckily, he had the [named] payroll administer there, that she was the one who entered the new amount; and was able to clarify that when the employee was upset about the decrease.

In July 2023, he lodged the formal bullying complaint and attended what he thought would be ‘a good faith meeting.’ He said that Mark Connolly and Susan Connolly were both present at that meeting. It was his intention to address issues and find solutions going forward.

The Complainant said that he was warned by other employees: ‘If you have beef with SO, you’re going to get fired.’ He said that he ‘put down this document [the 13 page document] to put down and convey my willingness, and put down the issues going forward, to have a functional workplace – I also wanted to lay out the problems.’

He was asked about the email  of July 19th [Page 40 of the booklet], in which there is a reference to the Complainant walking out a meeting. He said that was the ‘last moment when I decided that this is not working; Can’t work with this.’ He then emailed Mark Connolly the document entitled ‘Official Complaint’ [19/7/2023].

Of 22nd August 2023 meeting: He said that ‘apart from the bullying, this document sets out what I think would be better management practices.’ He said that SO was ‘running this business into the ground’ and he also accused SO of running his own business.

He said that there was a production meeting twice a week for two (2) hours, that SO would come out for that, or if there was some H&S issue, or the issue with the employee whose pay was increased and then decreased. He was asked whether the minutes were an accurate reflection of what was said. ‘Yes, broadly’ apart from ‘some small mistakes.’ He said, of the meeting, that Mr. Mark Connolly was ‘defending SO and I was in trouble.’ He said: ‘I felt okay because I had my say.’ But ‘I came back after a weekend and all of a sudden, I was not in charge of the production schedule anymore.’ He said there were meetings held subsequently to which he was not invited, which he should have been at. He said that he was not invited to the production meetings re: [a named project off site] but still did the production management meeting, on the factory floor, getting the employees to do the drawings for the unit. He was asked about detriment. He said: ‘My password – now locked out of Xero [accounting software].’ He was asked how that would impact his job. He said: ‘I used Xero to check our weekly/monthly turnover; also the affordability of the incentives structure that SO had me working on; me and SO didn’t speak anymore.’ He said that [having been removed from these things]: ‘Everybody knew I was a dead man walking. I was treated like a leper there.’

He was asked how he was dismissed? He said: ‘The same way that everyone there gets dismissed; Wait until the end of the day and everyone is already home, so nobody else knows and you don’t have time to [react].’ He said that he was called down to Mark Connolly’s office, told that he will ‘no longer be requiring my services.’ TB (quantity surveyor/estimator) escorted me to my desk and then to the door. He said that he was ‘sent an email the following day’, that there was ‘no warning that was going to happen.’

The Complainant confirmed that he received notice pay.

He said that he was ‘not the perfect employee – I can lose my temper in that environment.’ He was asked to comment on the allegations. He said they were ‘so vague.’ He was asked whether he was ever put on notice of any of those allegations before Friday. He was asked about accessing sensitive company information. He said that he ‘didn’t access anything I wasn’t given access to and had a password for.’ He said that there was no investigation, ‘no opportunity to defend myself’, that there was no right of reply and nothing in writing in relation to the dismissal.

He outlined the impact as putting ‘a bit of strain on my relationship.’ He said that he was fired for no reason from [his] job, having had a very stressful time. He said: ‘I’m not going to be bullied or intimidated into doing dysfunctional stuff, on SO’s behalf – you’re an agent of the company first.’

Mitigation

The Complainant was out of work for a period of one month (until 9/10/2023), before taking up a new position at €36,000 (€16,000 less per annum that the role he held for the Respondent company post pay-raise]. The Complainant worked for that company for thirteen (13) to fourteen (14) weeks. He was then out of work again for a period of six (6) weeks before he found work with his current employer also at €36,000 per annum.

Health & Safety Issue?

He was asked what health and safety issue he believe he raised. He said, the paint thinners, dust (this is not in his WRC complaint), and bullying and harassment.

On Cross-examination by Counsel for the Respondent, Mr. Denis Collins BL

It was put to the Complainant the ‘Statement of main terms of employment’, exhibited at page 22 of the Complainant’s booklet of documents listed his role as: ‘Production Manager.’

He was asked about the title ‘Operations Manager’ and who gave him that title. He said he thought it was [SO].’ 

The Complainant said that his email said ‘Operations Manager, and nobody had any problem with that – clients and also the guys working with me.’ He said that ‘even on the organogram, my role is on top of everyone else there, except for SO’ that he was ‘not just the production manager.’

It was put to him that SO is the General Manager. It was put to him that a contract of employment requires two parties to change the terms. He said: ‘The nature of my job was not ‘production manager’ alone.’

He was asked about his commencement date – it was put to him that 12th September 2022 was the correct commencement date, the date when he actually started work. He was hired on September 8th.  The employment contract states: ‘Your employment began on 08/09/2022.’

It was put to him that the job description was that of ‘Production Planner’ that his sole job was to plan production.

He was asked whether he recalled getting a job description setting out his job. He said: ‘No.’

It was put to him that his responsibilities included things like the ‘rough cut schedule’ and the ‘material requirements plan’, which he accepted. It was put to him that was reviewed weekly, which he accepted. He was asked if his responsibilities included ‘forecast manufacturing.’ He said: ‘As far as possible, yes.’ He was asked about going down to the factory floor. He was asked about ‘fabrication’ and speaking to members of staff to ascertain what they were doing on any given day. He agreed that was included in his role.

He was asked about ‘assembly’ and whether he went down there to speak to members of staff and ascertain what they were doing and ‘numbers’ – to find out how many/what they were doing. He said: ‘We had an idea.’ Where did you get the idea from?  ‘We didn’t have enough people to man all the stations. [Therefore, hard to be accurate]. Sometimes, it was paper-based and sometimes it was not.’ He talked about trying to sustainably or accurately measure the required information, that finished work orders were measured in a paper-based system (euro value wise). He talked about the need to keep the schedule ticking over, and the use of Statii for work orders.

It was put to him that his approach conflicted with SO’s vision. He agreed with that. He characterised SO as ‘useless’, saying ‘he did nothing every day, only coming out of his office to shout at us’, and that SO was in his office doing Excel sheets and Invoices.

It was put to him that he reported to SO, the General Manager, who delegated certain tasks to the Complainant, and that the Foreman in turn reported to the Complainant. He said: ‘I didn’t know my role was to actually physically count the items as they were finished.’ It was put to him that his role was to count the components, that it was a requirement of his job – that that gave a forecast in the factory.

It was put to him that SO put in place a plan, that SO reported to the Board, and the Complainant was unwilling to work with staff on the ground. The witness disputed this, saying: ‘I did my job correctly.’

It was put to him that counting the units at assembly is one part in a very big business. He said that the data is not structured like that in the ERP.

It was put to him that he had engaged in ‘non-performance’ of a key part of his role. He said: ‘I’m telling you I did not get that instruction.’ He was asked whether he was told verbally. He said: ‘You can’t follow an unfollowable instruction.’ He said that he ‘did not receive an executable instruction. He said: ‘He [SO] wanted me to manage the factory by discrete manufacturing units, but the ERP was not set up in a way that allowed that to be done.’

He said that what he was there to solve, to change the ERP, so that it could be forecasted on a very granular level, but SO ‘did not want to even put the first step in.’ He said that ‘none of the guys there were IT specialists.’ ‘What SO was expecting of me was impossible, and he was increasingly demanding of me, and he became more threatening to my job.’ He said that what he, the Complainant wanted was ‘not just talk, actionable instruction.’ He said that was what ‘the big disagreement was about – the fact that I pushed SO to give me an actionable instruction.’

The Complainant was asked about the preparation of invoices and he started outlining the quote stage and the drawing stage… [However, the Adjudication Officer, at the hearing, had to direct the witness to modulate his attitude and tone.]

The Complainant was cross-examined on whether he had actually gone down to the factory floor and asked the workers on the ground for the required information.  He said:  ‘Yes, but the guys didn’t know.’ ‘We had decent estimates’ It was put to him that he had ‘some estimates.’ He said: ‘We asked them all the time – when do you think this will be done?’ It was put to the Complainant that the company will say that it was not being given that information required. The Complainant interjected : ‘… and it’s ‘my fault’ that the company could not keep to deadlines?’ saying ‘ yes - the company is ‘lying.’

He was asked where he stored the planning schedule? Statii? Desktop? And why he did not put it on the Sharepoint system. It was put to him that he would not allow other members of staff access to it.

He said that he had a personal tool he had designed – he said there was ‘an engine in there which calculates it which I designed’ - and that was what he was using. He said that it was his ‘personal tool.’ He said that ‘Statii is perfect but not for scheduling.’ He described it as ‘inadequate – no use for planning.’

It was put to him that it was Mr. Connolly’s company, and that he can decide how the company is run, that if you are employed by somebody, you follow instruction. It was put to him that the Board wanted the information, and that the Complainant was not willing to follow instruction.

He said that Statii was not used for scheduling. It was put to him that the company would disagree with that. It was put to him that he was required to put the schedule on Statii; and he was asked whether he gladly put the output of the schedule on Statii.

He said in terms of duties that he was doing everything at the same time, and that he ‘spent the bones of probably a month full time engaging with him [SO]’. It was put to him that he ‘fundamentally disagreed with SO.’ He said: ‘At the end, yes.’ He said that ‘it was a discussion up to a point, and then he put his foot down and started threatening me.’ He outlined the disagreement in terms of the potential options, that they had worked full time at all this options for six months, and that ‘we need to manage by workstation again – breaking up the ERP system into constituent elements, so that it can then be used to forecast accurately.’ It was put to him that he found the situation impossible, that he was not willing to communicate with SO other than by email correspondence. He said: ‘Yes. Because he calls me a liar after we had discussions.’ He said that SO ‘never put any executable instruction’ It was put to him that that was his opinion, and that the company would disagree with that. He said: ‘Yes, in my opinion.’

It was put to him that he found SO’s theory and way of doing things not fundamentally workable. He said: ‘Yes.’ It was put to him that it got to such a level that he was not willing to do it. He said: ‘I cannot follow an instruction that is not executable.’ It was put to him that as a production planner, his role is to plan production? He said: ‘among a myriad of other things.’ He was asked whether, as part of his role, he could have asked for help  He said that he just had meetings with SO, which never an agenda. He said that ‘It didn’t work.’ He agreed that there was room for improvement.

He said that the company simply ‘didn’t have the employees.’ It was put to him that there was a new employee due to start on 15/6/23 and that he delayed his employment by one week. He initially disputed this: ‘I didn’t.’ and then said: ‘I can’t remember. It was too long ago.’ He was asked whether he told the new employee not to turn up to work. He denied this: ‘No.’

He was asked about a specific [named] project. It was put to him that he was asked how much material was needed for that project and that he refused to provide an answer. He denied this, saying: ‘That’s not true.’

It was put to him that the Board wanted to introduce an incentivised system and he was asked as to whether that was introduced. He said: ‘No.’ He denied there being discussions between him and SO as to what was to be introduced. He was asked about a chain of email correspondence from 19/07/23. He said that: ‘It worked to a point – we had it accurate to euro value per week, but I was aiming for something hourly.’ He said: ‘That’s not the type of thing I do and that’s not the type of thing that a production manager would do.’

He was asked about an email [Page 41 of the booklet] with the heading ‘Well in Hand’, and whether production scheduling was well in hand was put to him.

The Complainant was asked what the fundamental issue between him and SO was. He said: ‘The lack of strategy going forward; and the bullying and the threatening behaviour if he didn’t get what he wanted.’

The Complainant said that difference between SO and the Complainant was his dream about how to differently schedule the factory but he [the Complainant] ‘couldn’t just wave a magic wand.’

It was put to him that his role was to ‘implement, plan it and forecast to the company.’ He agreed with that: ‘Yes.’ It was put to him that he ‘didn’t fulfil it.’ He denied this, saying: ‘I did it.’

Access to Xero Accounting Software

The Complainant’s access to Xero software was explored with him It was put to him that in January 2023, he asked to manage payroll for one month. He said: ‘No, for much longer than one month.’ It was put to him that he had access to Xero Accountant software for payroll at that stage. He said: ‘No, not at that stage.’ It was put to him that the company’s evidence will be that he had no authority to access the Xero Accounting software, that his only authority was to fulfil the HR role in 2023. It was put to him that the company’s position is that he did not need access to Xero Accounting software, that he only needed access to Statii. He disagreed with that.

Page 8 (of the 13 page document): ‘Outline of organisational shortcomings’

It was put to him that he was exercising his rights under bullying and harassment. He said: ‘Yes.’ It was put to him that he had interpersonal difficulties with SO? He said: ‘Yes.’

It was put to him that he had a grievance against SO and that he alleged that he was engaging in bullying and harassment.

The Complainant was asked about his raising the issue of SO’s consulting fees. He said that it was ‘expenses’, not private information. He said that he had ‘full access to Xero. I was treated as the Operations Manager.’ He said that he had access to Xero ‘in good faith.’

It was put to him that this (the 13 page document he submitted) was an attack on SO. He said: ‘As well’ but that it was ‘an attempt to [get the company] see this guy for the parasite that he is’, describing him as ‘massively expensive’ and asking: ‘Why can’t I go to ownership with actual valid complaints?’ He said: ‘I put myself at great personal risk. It was a good faith meeting. I was disappointed when it went down the way it did.’

‘The Path Forward without SO.’

It was put to him that this had caused Mr. Connolly great concern, that his view was the Complainant had reviewed personal sensitive commercial data. He responded that this was in the context of recording production [hours and expense of payroll – what percentage of payroll]. He was asked who gave him access, whether it was SO or the company. He said: ‘SO.’

He was asked about information on the company’s computer systems which was deleted on 17/8/2023. He was asked to clarify as the company is unable to identify/recover what it was. He said: ‘Don’t know. Can’t remember.’

On Re-direct

He was asked if he put the information on Sharepoint, eventually. He was asked if any problem raised with him about his production? He said: ‘No.’ It was put to him that there was no warning, no investigation. He concurred. He was asked whether there was any suggestion of misconduct with respect to him having access to the Xero account. He said: ‘No.’ He said: ‘I think I actually got it from SO to help me calculate incentives.’ He was asked if there were any issues raised? He said: ‘No.’ He said that ‘even in the hearing, nothing bad was said about my performance.’ He was asked whether his DSAR request was fulfilled. He said: ‘No.’

Closing Submission on behalf of the Complainant

In relation to the complaint filed under the Protected Disclosures Act, it was submitted that the bar for a prima facie case has been met. The Solicitor for the Complainant submitted that the Complainant became a problem for the Respondent company in his continuous naiveté not being met with gratitude, but rather met with hostility. It was submitted that there was an overlap between SHAW Act and the Protected Disclosure Act, in relation to the two grievances. It is submitted that the thirteen (13) page document was submitted in August 2023 but that the Respondent is availing itself of a ‘retrospective façade’, in order to take away from the fact that the protected disclosure was raised. It is submitted that the Respondent company wanted rid of the Complainant and got rid of him, only raising performance issues two (2) days before.

It was submitted that the upshot of the thirteen (13) page document was that the MD’s ego was hurt, and that was ultimately the document led to the Complainant’s dismissal.

It was submitted that no reasons provided for the dismissal, no right of appeal, ‘nothing’, that all communications ceased. It was submitted that the dismissal was ‘not the only penalisation’, that access was withdrawn from the computer systems, that he was isolated from meetings, that he became ‘the black sheep at work for having raised health and safety concerns and protected disclosure.

The Solicitor for the Complainant cited the Toni & Guy case and cited the ‘but for’ test outlined within it, saying that there was causal link in the chain of events which led to the Complainant’s ultimate dismissal.

A supplemental submission was submitted on behalf of the Complainant post hearing within the prescribed time-frame. It addressed the start date of the Complainant’s employment as being 8th September 2022, rather than 12th September 2022. The Solicitor for the Complainant sought to rely on the date on the final payslip (dated September 8th) as indicating the Complainant had 12 months service (as required under the Unfair Dismissals Act, without taking into account any notice period. However, she further submitted that the period of service was moot as the case came within the Protected Disclosures legislation. She disputed that the Complainant had engaged in misconduct and re-iterated on behalf of the Complainant that his case was that he had been dismissed on foot of making a protected disclosure.

Summary of the Respondent’s Outline Submissions

The Respondent is a supplier of washroom suits and serves a specialised medical market as well as the high-end office, industrial and public building market. The company produces plumbing ducts, cubicles and vanity units. The company also makes shower rooms and changing rooms, mainly for commercial and industrial building.

The Complainant commenced employment with a Respondent on 12th September 2022. He was employed as a ‘production planner.’

On or about 19th July 2023, at 16.05, the Complainant emailed Mark Connolly of the Respondent company stating:

‘I want to have a meeting where I can lay an official complaint against your consultant SO for unacceptable behaviour towards me and ask that future suggestions from SO regarding projects or outcomes be given in writing.

SO communicates to me in a threatening manner. Actual threats to my job have been made if I do not go along with this dysfunctional behaviour. I do not have the time for endless abusive messages with SO anymore. I have made a list of the incidences of threatening behaviour creating a toxic workplace environment for me. I am happy to comment on any suggestions he might have and request that any discussions problems with my performance as operations manager be put in writing.

I will not be further intimidated by SO. I am under severe pressure with staff shortages and promises made to customer. SO has no clear plan or has not to date put in writing any workable suggestion or strategy that I can perform with my limited resources.’

On 8th August at 12.10pm, Mr. Mark Connolly, on behalf of the Respondent, wrote to the Complainant acknowledging the Complainant’s grievance as against SO and provided the Complainant with a copy of the Respondent’s bullying and harassment policy. In the same email, Mr. Connolly outline the Respondent’s bullying and harassment policy.

On 8th August 2023, at 13:41, the Complainant emailed Mr. Mark Connolly indicating that his complaint against SO “does not go to bullying alone”. The Complainant set out  in his correspondence that:

“It is regarding having one-to-one meetings with no agenda where nothing is put in writing and then I get into situations where I am held responsible and blamed. If it was not for actual threats made against my job, it would be less serious.

·       In these meetings, I put forward plans of actions and discuss what I can and what I can’t do, and then everything is forgotten.

·       What I say in these meetings gets misrepresented or forgotten, putting me in a position where it’s my word against SO’s (serious complaint I want to discuss with you).

·       I am in a position where I am expected to be responsible for everything at the same time and blamed for what is not done and threatened.

·       Even if at the onset I say that we do not have the staff and I do not have the time to do everything SO expects me to do, all at the same time, in the absence of priority list and clear goals, and then SO resorts to threats or bullying and micromanaging me as well as interferes with production if he does not get what he wants.

·       My job description and what I am to be working on is more than one person’s job and I am happy to do what I can to help and what Post Formed Systems employees and clients request from me.”

On 9th August 2023 at 11:40, the Complainant emailed Mark Connolly stating:

“Just informing you of an incident that occurred at Post Formed Systems yesterday. One of our new employees [CC] was told to clean the canteen floor with thinners yesterday morning (08/09/2023). He ended up probably using too much. The office complained and he closed the door and stayed inside cleaning the floor without ventilation. He stayed inside for way too long. He got dizzy on the factory floor and nausea after that and left early. He was not in today. I phone him a while ago. He fainted at home yesterday and went to the hospital yesterday. He had splitting headaches and could not sleep last night. He was coughing up black he said. His throat was irritated and his nose was blocked. He is seeing his doctor again today at 15:00.”

On or about 21st August 2023, Mr. Mark Connolly wrote to the Complainant inviting him to an investigation meeting to discuss his grievance raised against SO.

On 22nd August 2023, the Complainant attended the meeting. At the meeting, the Complainant provided Mr. Connolly with a grievance document. The grievance document revealed that the Complainant had accessed commercially sensitive information, pertaining to the Respondent company, without lawful authority. It is submitted that the Complainant had committed a serious breach of trust and confidence.

It is respectfully submitted that the Complainant had engaged in misconduct that had significantly damaged the relationship of trust and confidence between the Complainant and the Respondent. Examples of the Complainant’s wilful misconduct include and are not limited to:-

(a)    Failing to perform his duties in accordance with the instructions of the Respondent.

(b)    Failing to furnish critical information in relation to production;

(c)     Failing to carry out his duties in accordance with the Respondent’s instructions.

(d)    Failing to follow the direction and instructions of the General Manager of the Respondent company.

(e)    The deletion of company information without lawful authority.

(f)      The accessing and reviewing of commercially sensitive company information without lawful authority.

Following the discovery of the fact that the Complainant had been accessing and reviewing commercially sensitive information in relation to the Respondent company, matters were brought to a head in relation to the Complainant’s employment. It is submitted that accessing and reviewing sensitive commercial information in relation to the Respondent amounted to a serious breach of trust in the eyes of the Respondent company. It is submitted that the Respondent formed the view that the continued misconduct on the part of the Complainant could no longer continue in the interests of the Respondent company. Consequently, on 5th September 2023, the Complainant was summarily dismissed with immediate effect.

The Respondent made submissions on the law in relation to the Protected Disclosures Act 2014.

Specifically, it has set out the definition of ‘relevant information’, relevant wrongdoings, and that under section 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.’

Counsel for the Respondent submits that ‘A helpful summary of the law on Protected Disclosures is provided for in a judgment of the Court of Appeal in Barrett V. The Commissioner of An Garda Siochana [2023] IECA 112, Ni Raifeartaigh J. at paragraph 114, provides that:

1. The communication must disclose some wrongdoing on the part of the employer; (s. 5 of the 2014 Act);
2. 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;
3. The communication must have some informational content; (s. 5, Baranya; CGI)
4. 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)
5. 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)
6. 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)
7. 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)
8. 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)
9. 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;
10. 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.

Disclosure of Relevant Information

It is respectfully submitted that in order for a communication to constitute a protected disclosure, it must be a disclosure of relevant information. It is fundamental that the relevant information, in the reasonable belief of the Complainant, tends to show one or more of the relevant wrongdoing, as set out in s. 5 of the 2014 Act.

Counsel for the Respondent cites Hogan J. in Baranya V. Rosderra Meats Group Ltd. [2021] IESC 77, wherein he stated that an Adjudication body must:

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

He further cites Celtic Working Platforms V. Cian Carlin, in which the Labour Court quoted with approval Babula V. Walthan Forest College [2007] ICR 1026, stating that:

“Provided (the Complainant’s) belief (which is inevitably subjective) is held by the Tribunal to be objectively reasonable, neither (1) the fact that the belief turns out to be wrong – nor, (2) the fact that the information which the claimant believe to be true (and may indeed by true) does not in law amount to a criminal offence – is, in my judgment, sufficient, of itself, to render the belief,”

In Barrett V. the Commissioner of An Garda Siochana * Anor [2023] IECA 112, ni Raifeartaigh J in considering the term ‘reasonable belief’ provided, at para 113, that:

‘…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 or she 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 or she 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.’

It is respectively submitted that the information provided in the email dated 9th August 2023 does not amount to a protected disclosure within the meaning of the 2014 Act. It is respectfully submitted that the email does not tend to show wrongdoing within the meaning of s. 5 of the 2014 Act.

Penalisation

Counsel for the Respondent cites the definition of penalisation as set out in s. 3 of the 2014 Act, and submits that the Complainant was not penalised within the meaning of the 2014 Act as the substance of the issues raised in the Complainant’s submission relate to the Complainant’s alleged interpersonal difficulties with SO.

The Complainant complains that he has ‘…difficulties with [SO].’ The Complainant states that “these difficulties compromised of micro-management, abusive, and threatening interactions, demanding impossible outcomes, and undermining [the Complainant’s] position and ability to perform his duties.”

It is submitted that the majority of Complainant’s grievance arise from his perceived inter-personal difficulties with SO pre-dating the Complainant’s alleged protected disclosure.

It is submitted that in order to establish penalisation the Complainant must establish a causal connection between the protected disclosure and the alleged instances of detriment suffered. In the matter of Aiden & Henrietta McGrath Partnership V. Ann Monaghan [2017] 28 E.L.R. 8, the Labour Court held that:

“Thus, the detriment giving rise to the complaint must have been incurred because of, in retaliation for, the complainant having committed a protected acct. This suggests that where there is more than one causal factor in the chain of events leading to the detriment complained of the commission of a protected act must be an operative cause in the sense that ‘but for’ the complainant having committed the protected act, he or she would not have suffered the determined. This involves the consideration of the motive or reason which influenced the decision maker in imposing the impugned detriment.”

It is submitted that the Complainant has not established any penalisation within the meaning of the 2014 Act. It is submitted that the Complainant has not suffered detriment as a result of the alleged actions of the Respondent whether as alleged or at all. It is submitted that the Complainant has not demonstrated any evidence in support of these allegations, and such allegations are vehemently denied by the Respondent.

Unfair Dismissals Act

Without prejudice to the foregoing, it is respectfully submitted that the Complainant does not have the requisite service to ground a claim pursuant to section 8 of the Unfair Dismissals Act 1977.

s. 1 of the 1977 Act provides that:

“date of dismissal” means –

(a)    where prior notice of the termination of the contract of employment is given and it complies with the provisions of that contract and of the Minimum Notice and Terms of Employment Act, 1973, the date on which that notice expires.

(b)    where either prior notice of such termination is not given or the notice given does not comply with the provisions of the contract of employment or the Minimum Notice and Terms of Employment Act, 1973, the date on which such a notice would have expired, if it had been given on the date of such termination and had been expressed to expire on the later of the following dates –

(i)                  the earliest date that would be in a compliance with the provisions of the contract of employment,

(ii)                the earliest date that would be in compliance with the provisions of the Minimum Notice and Terms of Employment Act, 1973.

s. 7 of the Minimum Notice and Terms of Employment Act 1973 provides that:

(1) Nothing in this Act shall operate to prevent an employee or an employer from waiving his right to notice on any occasion or from accepting payment in lieu of notice

(2) In any case where an employee accepts payment in lieu of notice, the date of termination of that person’s employment shall, for the purposes of the Act of 1967 be deemed to be the date on which notice, if given, would have expired.

In the textbook, ‘Redmond on Dismissal Law’, 2017 at [22.63] it is stated at paragraph 22.63 that:

“If a contract lays down a notice period, it will technically be a breach of contract to give pay in lieu of notice unless this right is reserved to the employer. If it is, and an employee accepts payment of wages in lieu of notice, the date of dismissal will be the date on which termination takes effect, as the contract will have been determined in accordance with its terms. If there is no right to give pay in lieu of notice in the contract, the EAT will treat the case as a ‘no notice’ one and will add on the contractual or statutory notice, whichever is greater.”

It is respectfully submitted that the Complainant’s contract of employment specifically provided that “we reserve the contractual right to give pay in lieu of all or any part of the above notice by either party.” It is submitted that that Respondent was entitled to provide pay in lieu of notice and consequently the date of dismissal is the date of termination of the Complainant’s contract. Consequently, the Complainant does not have requisite service within the meaning of the 1977 Act.

Further, and in the alternative, and without prejudice to the foregoing, the Respondent contends that the Respondent is not entitled to notice arising from the misconduct on the part of the Complainant.

s. 8 of the Minimum Notice and Terms of Employment Act 1973 provides that:

‘Nothing in this Act shall affect the right of any employer or employee to terminate a contract of employment without notice because of misconduct by the other party.’

It is respectfully submitted that the Respondent was entitled to dismiss the Complainant without notice. Consequently, the date of dismissal is 5th September 2023 and therefore the Complainant does not have the requisite service for the purposes of the 1997 Act.

Safety, Health & Welfare at Work Act 2005.

It is respectfully submitted that the Complainant complaint pursuant to s. 28 of the Safety, Health & Welfare at Work Act 2005 is misconceived. It is respectfully submitted that the Respondent has not breached s. 27 of 2005 Act, as alleged or at all.

At the hearing,

Mr. Mark Connolly took the oath and gave evidence on behalf of the Respondent company.

He outlined that he is the Managing Director and the majority shareholder of the business. He explained that the company manufactures specialised furniture, supplies and delivers; that on average 22-24 people work for the company – that includes everyone – administration, installing teams etc. as well as the manufacturing roles.

He outlined that 8/9/2022, that Complainant started working for the company as a production planner, that the company is a manufacturing organisation which designs, manufactures and installs non-standard furniture; and that the company has a mix of avenues through which different work/projects come to it across a variety of time-lines.

He explained that the Complainant’s role was to measure what was coming through the factory daily, weekly, monthly. He said that the company could have 24/25/26 projects in hand, at any one time. He said that the Complainant brought value to it when he started the role – it was a new planner role, prior to that, it had been a shared responsibility.

He was asked when issues arose. He identified 19/7/23 as ‘the issue’ - the point where SO and the Complainant began to have more aggressive disagreements. Subsequent to that, there was a complete breakdown between both men.

The Complainant reported to SO. The witness outlined that deadlines were the primary objective - meeting target deadlines, meeting site conditions (as missing them can have implications). He was asked if the company brought this to the Complainant’s attention? He said: ‘No.’ He said there was a weekly management meeting every Wednesday morning, where KPIs were set/discussed. He was asked whether the Complainant complying with that? He said: ‘Depending.’

He outlined that all of the company information is in Statii, that all the ERP is in that, and you ‘can see it.’

He was asked about the Complainant’s comments in relation to scheduling? He said: ‘Statii is our system – we’re living inside Statii, we’re working inside Statii.’

He said that the Complainant ‘ was using another system, of which he was the manufacturer.’ He said that created a situation where the company’s intellectual property now inside a parallel system the Complainant had manufactured himself.

The witness (MD) said that he told SO, the GM: ‘We are using Statii only. If it doesn’t produce the result, it doesn’t produce the result. We are not using any other systems in parallel.’

He said: ‘Manufacturing facilities use Statii – they are happy with the facilities.’ He said: ‘In the absence of a planner, [the Complainant] had good IT systems and we would have expected Statii to get better in the system; Quality (another person) was using Statii.’

‘Production Manager’ V. ‘Operations Manager’

He was asked in relation to the question of the Complainant’s title and whether the company had given the Complainant the title ‘Operations Manager’? He said that the Complainant ‘awarded himself the title’, that it was not given to him by the witness [MD], and not given by SO [GM].’

He said that the Complainant’s responsibility was ‘to plan the factory, to serve the sites as they are required, when they are required for our customers.’ He said: ‘A walk-down daily would be essential.’ He said the Complainant did that but ‘I don’t think he got the information that he required.’ He expressed the view that there was ‘no resistance from staff on the floor’, that they ‘saw the hiring of [the Complainant] as an asset.’

He said that there were three (3) avenues used to serve the company’s customers, and that he thought the Complainant had difficulty measuring those. He said the three avenues were:

-          Long duration projects – required in-depth planning

-          4/5/6 weeks works – required planning

-          Uninitiated works – required planning, required correct material, current material, resources on the floor etc.

He said: ‘There was a plan and the plan was governed by me and led by SO.’ He said that the goals were ‘to meet our targets; to meet our customer’s targets, and to improve our lead times, where possible’

Meetings

He said they held meetings and the message was ‘Have faith in me, have faith in SO – we are improving all the time.’ He said of the weekly planning schedule: ‘Projects were coming in on time, that they were meeting their targets, when they had a win – it was something to celebrate

The witness explained that the Complainant had a Diploma in Accountancy and asked to assist the company in 2023 with payroll for a short period – that may have lasted about (6) weeks. Then, the company outsourced payroll shortly thereafter. The witness addressed the issue of the Complainant’s access to Xero Accounting Software. He said that the Complainant had access to Xero with permission, for that purpose at that time but that there was no requirement for the Complainant to access Xero once payroll had been outsourced. He elaborated that in terms of planning, that an Excel document which lives on the PC, through the company’s clocking mechanism is used – hours calculated, time and a half is calculated, and notes are calculated – tells you what each employee is due.

He said that the Complainant had access to Xero, at the beginning, with permission; that he knew that the Complainant was using Xero (to help with the payroll for that short period of time) but that there was no requirement for him to use Zero in his production planner role.

The witness said that by July 2023, the relationship had broken down at that stage, that SO and the Complainant had a disagreement in the office. SO was looking for information as to what was coming out of the factory ‘today’. He said that he did not know what the exact words the Complainant used to SO.

He said that the Complainant approached the MD (the witness), that the Complainant was ‘in high temperature mode’, and that he ‘advised the Complainant to take leave.’ He said that ‘information was [starting] to get starved’, that ‘we did not know what was coming out of the factory, when it was coming out of the factory’, that there were ‘complaints from customers’ and the ‘plan appeared to be breaking down.’ He addressed the fact the Complainant said he was being asked to do impossible tasks. He identified a [named project] where he said requested information was not forthcoming from the Complainant. He further identified another [named] project which was described as a ‘very prestigious AI led project.’ He said that SO texted the Complainant to request the requisite information. The witness said the company ‘couldn’t plan, couldn’t advise the customer’ that the Complainant was ‘no longer doing his job, at that point.’

On 22/8/23, there was a 90 minute meeting with a HR advisory service, that the meeting was verbally acknowledged, and then they were on holidays. When they came back, advice was taken.  There was a meeting with the Complainant, the co-director of the company and the witness [the MD of the company] to establish the complaint. He said there was a formal agenda to that meeting, as presented by the HR advisory company he had consulted. He said that at the meeting: ‘“This has to stop” was the message that I got from [the Complainant].’ He said that ‘the problem seemed to be any instruction from [SO]  from that time and prior to that time was becoming undeliverable and incorrectly communicated.’ He said targets were becoming ‘unreadable.’

He was asked about the thirteen (13) page document – 14.07. He said that the focus and attention of the meeting, which was important, was ‘a grievance investigation meeting.’ He said of the bold print highlights that those were [the Complainant’s] opinion on how the company was performing. He said that he ‘took deep offence to Page 8 [of the thirteen (13) page document], which in my view is completely outside of his boundary and is not his job.’ He said that his thought was ‘Where did he access that information?’, that it could only be accessed through Xero because the company is a paperless organisation, with those functions contracted out.

He said that he had been MD for twelve (12) years, that he had thirty (30) years practical experience, that it was a family organisation and that it was ‘very well run’, that it was a local organisation and a local employer. He described himself as ‘deeply offended by the content of the thirteen (13) page document’, saying of the Complainant that he was ‘telling me how to run my business.’

He said it had ‘nothing to do with the context of the differentiating meeting.’ He said that the thirteen (13) page document was ‘handed to me’, and the ‘material in that document - I had to reflect on the document, which had no impact or purpose to contribute to the grievance meeting.’

He said that ‘who works for the Connollys, who works for the company, [the Complainant’s] opinion was not needed in that context whatsoever.’ He outlined his view of the chain of command which was that it was his role to ‘plan, organise, lead and control’ and to ‘advise the GM accordingly.’

He expressed the view that he should not have received the document he did from ‘a planner’, and that the Complainant ‘did not have boundaries in dealing with people.’

He said that he ‘sought legal advice on the thirteen (13) page document’, that ‘we had a directors meeting’ and ‘made our decision based on that meeting.’

He said that ‘the fundamental point as to why the relationship could not continue was’ that there was ‘no trust.’ He emphasised: ‘No trust.’

He said that the document was ‘very detailed’ and that it contained ‘a lot of intellectual property’ of the company. He said ‘to have a person who is in my company to have very strong opinion like that, less than twelve (12) months in employment, to populate that, it’s too deep for me, too deep for the company.’ He said ‘[the Complainant] was not doing the job he was paid to do.’ He ‘became an impossible planner in the end.’ He said that when the Complainant was complying with the request for critical information, he was providing the information the company needed but in the Complainant’s form. Mr. Connolly said he ‘didn’t want separate opinions’, that he ‘didn’t want separate systems run in parallel.’ He also highlighted the issue of deletions off the computer on 17/8/23, information that he does not know what it is, and has been told cannot be recovered

Trust

In relation to the issue of trust, he said that ‘[the Complainant’s] difficulty in planning our factory for our customers - he just couldn’t manage all the different variants to him at the end of the day. His plan became one that was only okay at the end of the week or the end of the month. His planning system was failing.’ He said that ‘From July onwards, the trust was breaking down; the skill was disappearing and the plan was failing.’ He particularly objected to the invoices to SO which he described as company intellectual property being reviewed or accessed by the Complainant. He said there was no reason for the Complainant ‘to be scrutineering, examining or forming an opinion on it.’ He said: ‘It wasn’t his place to go. He’s a production planner.’

He was asked why did you form the view in relation to the termination of the Complainant’s employment. He said: ‘I didn’t want him to continue in his employment.’ He again highlighted ‘alternative IT systems’, ‘forming opinions on the company’

On Cross-examination

The witness was asked in relation to the issue of the job title, why the company had not reprimanded or disciplined the Complainant. He said that they did address it, that they (both the witness and SO) verbally asked him to change it back. He was asked about the raise. He said that it was on the basis of the Complainant’s performance, that for ‘the first six months, progress was being made.’

A review [Page 29 of the booklet of documents] from the General Manager to the Board, was put to him.  

The events of July 19th were put to him. The witness said that he was not there for those conversations. Nothing was in writing. He was ‘made aware of them.’  [Adjudication Officer’s Note: SO was not called as a witness.]

Again, the problems with OneDrive were highlighted. Over the summer period 2023, and in the months building up to that. The witness emphasised that ‘last summer’, ‘we could not get [an answer to the question] what was coming out of the factory today?’

In terms of the time-line, the witness said that the disagreement occurred since July 19/7/23 and people were on leave in early August.

It was put to him that he didn’t want any deviation from Statii; and that ‘you didn’t like to be told how to be told how to run your business?’ He said that was ‘Correct.’

He was asked if that were the case even if that meant a company loss. He said: ‘We were happy with the system. I wasn’t looking for Utopia, just progress.’

He was asked about staff morale. He said it was ‘good.’ It was put to him that the Complainant disputed that. He outlined that he had longstanding members of staff with over thirty (30) years’ service, some with forty-two (42) years.

He was asked about hitting targets. He said: ‘Not all the time but close - it might run over by a week.’ He talked about there being ‘too many moving parts, plan had to be combed out every day, to meet the customer’s objections, outside factors.’

The witness was asked about the grievance investigation meeting (the meeting where he was handed the thirteen (13) page document). He said there was ‘nothing to do’, that ‘trust’ was the answer to the question. He was asked where the breakdown in trust happened. He said that it was not the place of the Complainant to form to an opinion on P&L (profit and loss).

It was put to him that ‘whistleblowing’ was the term the Solicitor for the Complainant would use to characterise the matters raised by the Complainant, for example, the incident on the floor, that it was a protected disclosure. He was asked whether the document related to bullying and harassment? He said: ‘Possibly.’ It was put to him that by relaying the incident which had occurred in the factory on the August bank holiday weekend, that the Complainant was making a protected disclosure. He said that the thirteen (13) page document outlined the Complainant’s concerns/complaints about ‘how the company is being run, which I view as a criticism of me, as Managing Director.’

The witness was asked whether he considered appointing an independent investigator? He said: ‘I did reflect on it, but I had made my decision, and I stand by it.’

He was asked about page 51 of the company policy, and he was asked whether that policy was followed. He said: ‘To the best of our ability.’

He was asked about the investigation conducted, and whether SO was interviewed and if there were any notes. It was put to him that there were ‘no notes’, that it was ‘verbal, as well’. It was highlighted to him that here were no notes from the interview with SO but there were notes from the Complainant’s interview. The witness said:  ‘It was not his [SO’s] responsibility. It was my responsibility.’

He was asked if he was close with SO. He said: ‘No.’ He was asked if SO still worked for the company. He confirmed that he does: ‘Yes.’

The witness was asked if the Complainant was afforded a right of appeal. He said that he was not. He said: ‘I formed an opinion and made a decision.’ He re-iterated that the Complainant’s opinion of the company and how it was being run represented a breakdown in trust, which he perceived to be irreparable, in addition to the other matters identified – including the deletion of information on 17/8/23, that the company has been told is ‘unrecoverable.’ He was asked what that information was. He said: ‘Don’t know.’

It was put to him that he did not give him a right of appeal because he did not want the Complainant back. A number of questions were put in relation to why the witness had made the decision he did. On foot of an objection from Counsel for the Respondent that the line of questioning was straying into the area of legal privilege, the Adjudication Officer clarified for the witness that he was entitled to assert legal privilege in relation to some of the questions posed, which he did.

The witness was asked why he did not respond to the Complainant’s follow up email. He said that the Complainant had ‘left the company.’

It was put to him that he had also not complied with the Data Subject Access Request (DSAR) and that he had a legal obligation to provide that information, on request.

On re-direct

The question of the Complainant’s performance until the performance review was put to him. He acknowledged it to be good. He was asked if there were any issues? ‘No.’ He added that ‘[the Complainant’s people skills were noted on the probationary/pay-raise review.’

He was asked whether the incident with the paint thinners was a prohibited act? He said: ‘No.’

He was asked whether there was any wrongdoing arising from the Complainant’s complaint? He said: ‘No.’

It was put to him that there were inter-personal difficulties [with SO]. He agreed.

Closing Statement on behalf of the Respondent company

Three complaints were filed.

1.       The complaint under the Protected Disclosure Act requires the disclosure of ‘relevant information’, which Counsel for the Respondent submitted was simply ‘not here, for the purposes of the 2014 Act.’  He submitted that this is simply not a situation – floor thinners, without ventilation – that meets the requisite standard. He said that there was ‘no evidence whatsoever, no particularity for the purpose of relevant wrongdoing.’ He said that there was a requirement under the legislation that it was in the ‘reasonable belief of the worker that it tends to show [one or more] relevant wrongdoings’, e.g. a breach of a legal obligation/statutory duty. He re-iterated that there was no evidence whatsoever that that was the case here. He submitted that a bald statement is insufficient, that the Complainant had not specified or particularised that very well in his evidence. He said that he was arguing that ‘it doesn’t meet the threshold.’ The email of 9/8/23 is what the Respondent understood to be the putative ‘protected disclosure.’

He further submitted that in terms of ‘relevant information’, citing the case of Baranya at paragraph 43, he emphasised that the complaint ‘does not have specific factual content and specificity.’

Finally, citing Barrett V. An Garda Siochana, paragraphs 111-114, he submitted that there has to be a link between the protected disclosure and the penalisation.

2.       In relation to the claim for unfair dismissal (as penalisation), he said that the claim was the Complainant had been dismissed for making a complaint, which was not true. 

He submitted that the Complainant accessed ‘commercially sensitive information’ for the purpose of putting information before the company. He submitted that the Complainant had a personal grievance in relation to inter-personal difficulties between him and SO, who was paid by way of invoice. The Complainant made the point that the company could save money by not paying SO, which went above and beyond [the scope of the Complainant’s role]. That was the reason and those were the circumstances in which the Complainant was dismissed. No procedures were used. In the circumstances, the company, it was submitted, had to terminate his employment. The Complainant went above and beyond his position/station. He was using software that he had no permission to use, no lawful authority to use.

He said that the initial row erupted in July 2023, that the Complainant had a difficulty in terms of the strategic direction SO was taking the company. SO wanted the company to use Statii. The Complainant did not agree with that – he was using a spreadsheet, saving it to his (own) system. He retained that, having created the ‘engine’ behind that himself.

It was submitted that whether the company was wrong or right in its decision/choice of software, the Complainant did not follow legitimate instructions in relation to that.

The termination of employment had to happen when the issue of trust became an issue. He particularly highlighted the last two paragraphs of page 8 of the thirteen (13) page document submitted – saying that it pertained to commercially sensitive information in relation to company.

3.       SHAW Act complaint [thinners only]. Counsel for the Respondent submitted that in relation to the third complaint, filed under the SHAW Act – that s. 27(3) requires adjudication on that. He submitted that no wrongdoing under the SHAW Act 2005 had occurred. [TAB 12] He submitted that no wrongdoing has been identified in the evidence that would fall within the 2005 Act. He said that the evidence was that the Complainant was not dismissed due to the email of the August 9th nor his grievance raised against SO.

In response to some queries from the Adjudication Officer, Counsel for the Respondent submitted, in relation to SO, that while he was being paid on an invoice basis, he was managing staff within the company. For the purposes of the 2014 Act, he falls within that [s. 5A]. He managed the day-to-day operations, reported to the Board, and the Complainant reported directed to him.

In relation to the correct date of termination he submitted that the correct date of dismissal was 5/9/2023, that it ‘takes effect at the stage.’ He submitted that the Complainant’s evidence was that he started work on 8/9/2024, physically started working on 8/9/2024. He said that he was relying on s. 8 of the Minimum Notice and Terms of Employment Act 1973 (misconduct), i.e. that the Complainant was not entitled to notice due to his misconduct. He received pay in lieu of notice, in line with the terms of his contract. Counsel for the Respondent said that there was not a statutory bar to him relying on s. 8 of the Minimum Notice and Terms of Employment Act 1973.

At the request of the Adjudication Officer, he submitted a supplemental submission post-hearing on the two legal points raised:-

1.       Correct date of dismissal (and how that interacts with notice/payment in lieu of notice).

2.       Whether SO (given he is a consultant and not an employee) comes within the auspices of s. 5A of the Protected Disclosures Act 2014.

I find that trust and confidence broke down between the Complainant and the Respondent company, when the Complainant in essence tried to effect a coup within the company.

In terms of the claims submitted, I find that no ‘relevant information’ was disclosed, i.e. that the issue of a protected disclosure falls at the first hurdle, that there was therefore no protected disclosure and no penalisation on foot of a protected disclosure. It is common case between the parties that there was an increasingly fractious relationship between the Complainant and the person to whom he was reporting, SO. The genesis of this appears to be that the Complainant had different ideas as to how the company should be run and had a difficulty with the strategic direction in which the company was being taken.

I accept the evidence given on behalf of the Respondent company that the Complainant did not comply with reasonable management instructions, awarded himself a title the company had not given him, and saved things to his own system (one he had created) rather than the one he was required to use and which the company could access, all of which caused alarm to the company, especially when it could not ascertain the required information in the required time-frame, as requested and needed. I further accept that the Complainant accessed information – the Respondent company is characterising this as ‘sensitive commercial intellectual’ information – for which he had no reason to access, and then sought to use that information to put to the MD an entirely different strategic direction for the company, dispensing with his direct boss altogether. [This is the ‘grievance’ document the Complainant submitted.] I note the company’s concern in relation to the deletion of information which it has been advised is unrecoverable, also.

The document the Complainant submitted at the grievance meeting sought to have the owner of the company choose him and his ideas as to how the company should be run, over the person to whom he reported, SO, and the strategic direction that person was employing, who was an external Consultant. The person to whom he reported was not a direct employee and he invoiced the company for his services. At the hearing, the Complainant characterised SO, in his evidence as ‘massively expensive’, ‘useless’ and a ‘parasite.’ It was the Respondent company’s view that the Complainant had accessed sensitive, personal, commercial data, entirely beyond the scope of his role – he was a production planner - and sought to use it in a manner than was objectionable and alarming. This caused an irreparable rupture in trust and confidence between the Respondent company and the Complainant. I find that it was, on foot of that, and not anything else, that he was dismissed.

In relation to the unfair dismissal claim, on its own merits (as opposed to under the auspices of penalisation on foot of a protected disclosure), I find that the Complainant lacks the requisite service to file a complaint. I am guided by the Labour Court decision in Fyffes Tropical Ireland Ltd V. Loui Osman UDD2413, in that regard.

CA-00059162-001 – I find that this complaint is not well founded. I am satisfied the information identified as ‘relevant information’ was not relevant information for the purpose of the Protected Disclosures Act 2014, and that this claim therefore falls at the first hurdle. I am further satisfied that it did not tend to show ‘relevant wrongdoing’ as defined, but rather the grievances and difficulties between the Complainant and his manager were interpersonal in nature, and come within s. 5A of the Protected Disclosures Act 2014 (as amended). I am further satisfied that, in any event, this was not the reason for the dismissal. It did not arise out of the putative protected disclosure, i.e. there was no causal link, (applying the ‘but-for’ test).

CA-00059162-002 – I find that this complaint is not well founded. In the first instance, I am satisfied that the Complainant was not penalised on foot of a protected disclosure as I am satisfied that there was no protected disclosure (as per my finding in CA-00059162-001).

I further find, that in the matter of an unfair dismissal simpliciter (i.e. one arising from substantive or procedural unfairness, on its own merits, and not as part of penalisation on foot of a protected disclosure), the Complainant does not have the requisite service under the Unfair Dismissals Act 1973 to file a complaint for unfair dismissal. I find that the correct date of dismissal is 5/9/23 – I am guided by the reasoning of the Labour Court in Fyffes Tropical Ireland Ltd. V. Loui Osman UDD2413.

CA-00059162-003 – I find that this complaint is not well founded. In particular, I am satisfied that, on its face, there is nothing within the email of 9/8/2023 that would give rise to a prima facie claim which would give rise to a case under the Safety, Health & Welfare at Work Act 2005.

Protected Disclosure; Penalisation; Unfair Dismissal; SHAW Act 2005;