Complainant

Respondent

Parties

Ali  Izzy

Solarwinds Software Europe Designated Activity Company

Representatives

Mark Harty SC, assisted by David Byrnes BL instructed by Grainne O’Donovan Douglas Law Solicitors LLP

Mary Fay BL instructed by Aisling Kerins Arthur Cox LLP

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00066399-001

01/10/2024

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

CA-00066399-002 DUPLICATE

01/10/2024

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

CA-00066399-003

01/10/2024

The Complainant commenced employment with the Respondent in November 2018 as a senior sales manager responsible for the Middle East region. The Respondent is part of a multinational software group. Over time, he was promoted to a senior sales role with responsibility for key accounts and partners in the Middle East region, particularly Saudi Arabia. At the date of dismissal, he had approximately five years and nine months’ service with an annual package of €197,062. The Complainant alleges that he made protected disclosures concerning serious wrongdoing and he was penalised for having made those disclosures. The penalisation under Schedule 2 of the Protected Disclosures Act 2014 (PDA) relates to a first written warning. He submits his dismissal was unfair and retaliatory for making the protective disclosures in breach of the Unfair Dismissals act 1977, as amended (UDA). He further argues that even if the dismissal was not found to be a protected disclosure dismissal, it should nevertheless be found to be unfair on general grounds under the UDA, contending that dismissal was a disproportionate response and fell outside the band of reasonable responses available to a reasonable employer.

The Respondent denies that the Complainant made protected disclosures within the meaning of the PDA. The Respondent denies penalisation in the matter of a first written warning and contends that the dismissal arose solely from misconduct and gross insubordination following a fair disciplinary process and appeal.

The Complainant was represented by Mr David Byrnes instructed by Grainne O’Donovan, Douglas Law LLP, at the preliminary hearing and by Mr Mark Harty SC, assisted by Mr David Byrnes BL and instructed by Douglas Law, on the subsequent days. The Respondent was represented by Ms Mary Fay BL, instructed by Ashling Kerins, Arthur Cox LLP.

Respondent Opening Submission:

The Respondent accepts that the Complainant was dismissed but contends that the dismissal arose solely from misconduct following fair and independent disciplinary processes and was unrelated to any alleged protected disclosure. The Respondent disputes that any protected disclosure was made by the Complainant and further contends that the first written warning was not because of any alleged protected disclosure.

Counsel submits that the Complainant, employed from July 2018 in a sales role covering the Middle East region. He raised allegations in November 2023 and February 2024 that external partners were offering kickbacks to the Respondent’s staff. These allegations did not assert wrongdoing by the Respondent itself and were unsupported by evidence. Counsel submits the allegations related to matters within the Respondent’s own compliance and investigative remit. The Respondent nonetheless initiated an extensive investigation, including engaging consultants Alvarez & Marsal to review over 3,000 documents from mobile devices, and emails but no substantiation of the alleged wrongdoing was found. The investigation did, however, reveal conduct by the Complainant inconsistent with company policies, including booking “soft” purchase orders (SPOs) which involved the booking of deals in advance in a practice prohibited by the Respondent.  There was a suspicion that this was an attempt to avoid detection by the Respondent’s Finance and Legal departments.

Counsel outlines two separate disciplinary processes. The first resulted in a written warning in May 2024, later reduced on appeal to nine months, following admissions by the Complainant that he had booked purchase orders in advance in breach of policy. Counsel submits that this sanction was proportionate and followed full fair procedures. The termination of employment constituted a response to admitted misconduct rather than any form of penalisation for whistleblowing.

A second disciplinary process arose from events in June and July 2024 concerning a Middle Eastern state’s Ministry of Energy deal, where the Complainant admitted deliberately cancelling and recalling authorised quotes and attempting to exclude an approved partner. Additionally, Counsel submits, he made himself unavailable during a critical quarter-end period, requiring senior staff to intervene to close the deal. This conduct, Counsel argues, constituted gross insubordination and led to the Complainant’s dismissal following a further disciplinary hearing and an appeal, both of which upheld the sanction.

Legal Argument:

Counsel relies on the “band of reasonable responses” test and cites  British Leyland UK Ltd v Swift [1981] IRLR 91,  here Lord Denning MR stated:

“The correct test is: Was it reasonable for the employers to dismiss him? … there is a band of reasonableness, within which one employer might reasonably take one view, another quite reasonably take a different view.”

Counsel asserts that this test was approved in Allied Irish Banks plc v Purcell [2012] 23 ELR 189, where Linnane J. stated:

“It is not for the EAT or this court to substitute its view for the employer’s view but to ask whether it was reasonably open to the respondent to make the decision it made.”

This approach was endorsed by the High Court in Governor and Company of the Bank of Ireland v James Reilly [2015] IEHC 241.

 Counsel submits that no protected disclosure within the meaning of section 5 of the PDA was made, relying on Baranya v Rosderra Irish Meats Group [2021] IESC 77  where the Supreme Court held that a disclosure must contain sufficient factual content and specificity. Counsel further cites Donegal County Council v Carr PDD161 to point out that the Labour Court held that complaints falling within the employee’s role and not involving employer wrongdoing were not protected disclosures.

Counsel argues the allegations did not fall within matters the employer it was obliged to investigate under section 5(5) of the Act. Even if the disclosures were protected, Counsel contends there was no penalisation and no causal link between the disclosures and either the warning or the dismissal, applying the “but for” test articulated in Aidan & Henrietta McGrath Partnership v Monaghan PDD162and Southside Travellers Action Group v O’Keeffe (UD/17/180).

Counsel also submits, without prejudice, that the Complainant substantially contributed to his own dismissal through admitted misconduct and that trust and confidence were irreparably damaged, rendering reinstatement or re-engagement inappropriate. Any compensation, if awarded, should be assessed strictly under section 7(1)(c) of the UDA, limited to actual financial loss, and reduced for contribution and any failure to mitigate loss, with reliance placed on authorities including Sheehan v Continental Administration Co Ltd UD858/1999,Cityjet v Gil UDD215, McGuire Haulage Ltd v O’Farrell UDD2324, and N Smith & Sons Ltd t/a Ford Smiths of Drogheda v Ragelis UDD2332.

Counsel concludes by requesting that the Adjudication Officer finds find that no prima facie case of penalisation has been established and therefore determine that no protected disclosure was made. Alternatively, that no penalisation or unfair dismissal occurred, and dismiss all complaints in their entirety, with no award of compensation or other relief.

Evidence of Mr Abdul Rehman (by video link).

The witness said that at the material time, he was employed as Sales Director with responsibility for the Middle East region and was the direct line manager of the Complainant.

The witness outlined his role and confirmed that he had been the Complainant’s manager for several years prior to the termination of employment. He described the Complainant as a senior sales employee with a high degree of autonomy and responsibility for significant customer accounts and transactions.

The witness confirmed that he was the person who raised the complaint of insubordination against the Complainant, which ultimately led to the second disciplinary process and the Complainant’s dismissal. He stated that this complaint arose from a specific incident concerning a sales transaction in which the Complainant recalled an approved quote within the Respondent’s systems, thereby preventing the deal from progressing. He stated that the transaction in question had been approved at senior management level, including approvals beyond his own authority, and that he regarded the Complainant’s actions as a serious matter given the stage the deal had reached and the commercial implications for the business. The witness explained that he attempted to contact the Complainant during the relevant period to resolve the issue and progress the transaction before quarter end, but that the Complainant was uncontactable at critical times but that he (the Complainant) continued to interfere with the process.

The witness gave evidence that, having raised the complaint of insubordination, he had no further involvement in the disciplinary process, which he understood was thereafter managed independently by HR and senior management. In relation to earlier events, the witness accepted that he was aware that the Complainant had raised concerns about discounting practices and the involvement of certain partners, including Company X. He also accepted that the Complainant told him, during what he described as an informal lunchtime conversation, that he had previously been offered a bribe by a company in exchange for favourable treatment. The witness stated that he did not regard this as a formal complaint and did not investigate or escalate the matter, as he did not consider it to fall within his remit at the time.

The witness confirmed that he cooperated fully with the Respondent’s internal review process, including surrendering his mobile phone for examination, and that WhatsApp communications from his device were reviewed as part of that exercise. Counsel referred him to a series of Whatsapp messages between the witness and the Complainant which the witness stated related to the prohibited SPOs. He further accepted that he himself received a written warning but stated that this related solely to documentation deficiencies in respect of completed transactions and not to the creation of SPOs. He maintained that company policy prohibited SPOs and rejected the suggestion that he had been disciplined for the same conduct as the Complainant.

Cross-Examination:

Under cross-examination, the witness accepted that the Complainant had greater industry experience than him and that the Complainant had previously performed well in his role.

The witness accepted that the Complainant had raised such concerns about improper conduct and kickbacks with him but maintained that the allegations were not supported by evidence and were not presented to him as formal complaints requiring escalation or investigation.

The witness was challenged on his response to the alleged bribe disclosure. He accepted that he took no steps to investigate or escalate the allegation and that he did not refer it to the Legal and Compliance Dept. He said “It was not part of my job”. He maintained, however, that he regarded the conversation with the Complainant as informal rather than as a report requiring action.

In relation to the disciplinary processes, the witness was questioned about the apparent disparity between the sanction imposed on the Complainant and the sanction imposed on him. He maintained that the situations were materially different, stating that his warning related to paperwork issues, whereas the Complainant’s discipline related to admitted misconduct, the prohibited setting up of SPOs and, later, to insubordination for recalling an approved deal.

The witness rejected the suggestion that he influenced or orchestrated the disciplinary outcome. He maintained that once he raised the complaint regarding the quote recall, the matter was managed independently by HR.

The witness was also questioned regarding discount approval processes and governance structures within the Respondent. He stated that discounts were subject to multi-layer approval and that the Complainant was aware of those processes. He maintained that it was not open to the Complainant to override senior approvals unilaterally.

Evidence of Ms Sam Bengston:

Ms Sam Bengtson gave evidence on behalf of the Respondent. She was employed in a senior HR role with the Respondent at the material time and acted as the decision-maker in respect of the disciplinary process which ultimately resulted in the Complainant’s dismissal.

The witness outlined her professional background and confirmed that the Respondent requested her to conduct a disciplinary process into allegations of insubordination arising from a specific incident concerning the recall and cancellation of an authorised sales quote relating to the Ministry of Energy deal.

She stated that her remit was strictly confined to examining the conduct surrounding that incident. She emphasised that she was not involved in, nor did she have oversight of, the earlier whistleblowing investigation (referred to internally as Project Oasis), nor was she asked to review the merits of the Complainant’s disclosures or the conduct of any other individuals.

The witness explained that she received a referral setting out the allegation that the Complainant had knowingly and deliberately cancelled or interfered with an approved quote, despite being aware that the discount had been authorised at senior management level. She understood this to be a potential breach of trust and confidence, particularly given the Complainant’s senior role. She confirmed that she invited the Complainant to a disciplinary meeting and provided him with notice of the allegations. She accepted that the Complainant did not dispute having recalled the quote but rather sought to justify his actions on the basis that he believed the discount was inappropriate. The witness referred to the minutes of the disciplinary meeting which were exhibited, as well as other documentation relating to the disciplinary process.

The witness stated that, in her assessment, the critical issue was not whether the Complainant agreed with the discount decision, but whether he was entitled to unilaterally override a decision which he knew had been approved by senior management and subject to established governance controls.

The witness gave evidence that the Complainant acknowledged he was aware that additional safeguards existed, including approval by senior leaders in Sales and Finance, and that by cancelling the quote he knowingly disrupted an active commercial process at a critical point in the quarter. The witness confirmed that she concluded the Complainant’s actions amounted to serious insubordination and a breakdown of trust and confidence.

She said that the only result she could come to was that there was insubordination “in that you can’t override the decision of senior management”. She issued a dismissal decision, which she set out in writing, explaining that the Complainant had substituted his own judgment for that of the organisation and had acted in a manner that jeopardised the Respondent’s commercial interests. The witness confirmed that the Complainant exercised his right of appeal, which was heard by a separate manager who had sales experience.

Cross-Examination:

Under cross-examination, the witness accepted that she had no formal training in conducting disciplinary hearings. She maintained, however, that she was an experienced HR professional and that she followed the Respondent’s disciplinary procedures.

The witness accepted that she had not reviewed the whistleblowing material and had not seen the Project Oasis report. She said she was not aware of the detailed substance of the Complainant’s protected disclosures at the time she conducted the disciplinary process. She stated that she did not consider this to be relevant, as she had been asked to decide a discrete allegation of misconduct.

It was put to her that the Complainant’s actions could not be viewed in isolation from his concerns about corruption and improper discounting. The witness responded that the Complainant was not dismissed for raising concerns, but for how he chose to act in response to those concerns. She stated that raising issues through appropriate channels was legitimate, but unilaterally cancelling an authorised quote was not.

The witness accepted that she did not interview Mr Rehman or other senior managers involved in approving the discount. She relied on a full statement by Mr Rehman instead of direct interview. She explained that she did not consider this necessary, as the Complainant had accepted that the quote was approved and that the fact of approval was not in dispute.

It was suggested to the witness that her investigation was overly narrow and that she failed to consider mitigating factors. The witness disagreed, stating that she considered the Complainant’s explanations fully but concluded that his conduct remained inappropriate regardless of motive. She accepted that she did not investigate the legality of the deal saying it was not within her remit.

She rejected the suggestion that the disciplinary process was retaliatory or linked to whistleblowing. She stated that she was not influenced by any protected disclosure and that she had no knowledge of the protected disclosure.  She said her decision was based solely on the Complainant’s admitted conduct and its impact on trust and confidence.

The witness accepted that the dismissal occurred some months after the Complainant had made disclosures but denied that timing played any role in her decision. She reiterated that the dismissal followed a specific incident, not a pattern of conduct.

Evidence of the Ms Sarah Coughlan:

Ms Sarah Coughlan gave evidence that, at the material time, she was employed by the Respondent as in-house legal counsel. Her responsibilities included advising on legal and compliance matters, including anti-corruption obligations, whistleblowing issues, and the conduct of internal investigations. She stated that she was not part of the HR function and did not have responsibility for disciplinary decision-making.

The witness outlined that she first became involved with the Complainant in or around November 2023, following concerns raised by him regarding discounting practices and the involvement of a distributor referred to as Company X. She confirmed that she met with the Complainant on a number of occasions, including meetings in November 2023 and again in February 2024, sometimes in the presence of another colleague from the Legal team.

The witness stated that during these meetings the Complainant raised concerns which he characterised as potential corruption. He described improper discounting, and possible kickbacks or side arrangements involving Company X. She described the Complainant as articulating these concerns with conviction and seriousness. However, she stated that she sought to understand the factual basis for the allegations and repeatedly asked the Complainant to provide supporting material.

The witness gave evidence that she explained to the Complainant that, without evidence or documentation, it would be difficult to progress a formal investigation or to take action against either third parties or employees. She stated that she asked him on more than one occasion to provide materials such as screenshots or messages that might support his concerns. She stated that the Complainant expressed reluctance to do so, raising concerns about confidentiality and potential retaliation.

The witness stated that she explained the Respondent’s whistleblowing framework and internal protections but reiterated that an investigation required evidence in order to move beyond an exploratory stage. She stated that, notwithstanding the absence of documentary proof, the concerns were treated seriously.

The witness gave evidence that, between February and May 2024, the Respondent engaged external consultants, Alvarez & Marsal, to assist with an internal investigation referred to as “Operation Oasis”. She explained that this involved the downloading and review of email and WhatsApp data from company phones, which was then uploaded into Relativity software for analysis.

The witness stated that she and a colleague spent several weeks reviewing a substantial volume of material, amounting to over 3,000 documents. She stated that search terms were devised based on the Complainant’s allegations and that the review was directed at identifying any evidence of corrupt practices which might include  side deals, or improper arrangements involving Company X.

The witness stated that, in the course of this review, material was identified suggesting the use of SPOs, as well as communications between the Complainant and Mr Rehman which included derogatory language about colleagues and references to remaining “under the radar” of Finance and Legal. She stated that these communications were encountered while reviewing material for evidence of corruption rather than being the original focus of the investigation.

The witness stated that she did not recall identifying any material which substantiated the Complainant’s specific allegations of corrupt payments or side arrangements involving Company X. She stated that the conclusion reached was that the allegations were not supported by the evidence reviewed.

The witness gave evidence that she reported these findings to senior colleagues. However, she emphasised that she had no role in deciding whether disciplinary action should be taken and did not recommend any particular sanction. She stated that she did not participate in the disciplinary process which subsequently resulted in the Complainant receiving a first written warning and that such processes were managed by HR independently of Legal.

Cross-Examination:

Under cross-examination, the witness accepted that the Complainant appeared to genuinely believe that something improper was occurring. She accepted that he was persistent in raising his concerns and that he expressed fear of retaliation if he pursued them further.

The witness accepted that not every individual identified by the Complainant was interviewed as part of the investigation and stated that the scope of the investigation was necessarily constrained by the absence of corroborating evidence. She stated that professional judgment was exercised as to how far the investigation could reasonably extend.

The witness was questioned regarding a reference in the investigation materials to a further whistleblowing complaint by an individual referred to as Mr A. She stated that she did not have the underlying complaint itself and could not recall the precise timeline, explaining that her role was limited to reviewing the material uploaded into Relativity. She accepted that the wording of the report suggested a complaint relating to a potentially corrupt deal involving the Respondent and Company X and agreed, in principle, that such a third-party complaint could be corroborative. However, she stated that she did not recall any further analysis of corroboration being carried out or documented.

It was put to the witness that the Respondent had focused more closely on the Complainant’s conduct than on the substance of his allegations. She rejected that characterisation, stating that the Respondent conducted an extensive review of the allegations but that the outcome did not support them. She maintained that the identification of potential policy breaches by the Complainant and Mr Rehman was incidental to, rather than a substitute for, the investigation into alleged wrongdoing.

The witness was questioned regarding whether she considered the risk of retaliation against the Complainant. She accepted that the Complainant had raised such concerns and stated that she had explained the Respondent’s internal processes and protections.

She was further challenged on why the investigation report highlighted potential non-compliance by the Complainant and Mr Rehman rather than focusing exclusively on Company X. She explained that, while reviewing material for evidence of corruption, they encountered indications of separate breaches of company policy which she believed should be brought to the attention of senior colleagues. She rejected the suggestion that the report relied on selective or cherry-picked material, stating that over 3,000 documents were reviewed and that extracts were included because they evidenced potential policy breaches. She accepted that she did not analyse metadata and did not have expertise in that area.

The witness reiterated that she did not initiate disciplinary proceedings. She had no participation in disciplinary meetings, nor did she advise on sanctions. She maintained that all disciplinary processes were handled independently by HR.

Closing Argument:

Counsel for the Respondent, Ms Mary Fay BL, noted that the penalisation complaint under the PDA was narrowed during the hearing to the first disciplinary process, with the second disciplinary process and dismissal addressed solely under the UDA.

Counsel submitted, as a preliminary matter, that there was a substantive issue as to whether the matters relied upon by the Complainant constituted protected disclosures within the meaning of the PDA. It was argued that the allegations related to the private commercial affairs of a private company involved no allegation of misuse of public funds. They amounted, at their height, to potential breaches of employees’ contractual obligations rather than statutory wrongdoing.

Counsel emphasised that the Respondent was a publicly traded company with established governance, audit and compliance controls, and that the evidence of Ms Sarah Coughlan demonstrated that the Complainant’s concerns were taken seriously and investigated, including through a review of extensive documentation and WhatsApp communications, carried out by an external independent company.

In relation to penalisation, Counsel submitted that the Complainant’s case rested on an assumption that the first disciplinary process must have been retaliatory because it followed the raising of concerns. Counsel argued that this proposition was not supported by the evidence. The Respondent’s case was that the disciplinary process arose from policy breaches uncovered during a lawful review, including admitted engagement by the Complainant in SPOs, which was corroborated by WhatsApp messages. Counsel highlighted that the Complainant accepted such conduct could be dismissible and that the sanction imposed—a first written warning, later reduced on appeal—was the most lenient available and inconsistent with penalisation.

Counsel rejected any suggestion that the WhatsApp evidence was fabricated or manipulated, noting that this was inconsistent with both the Complainant’s admissions and Ms Coughlan’s evidence as to the provenance of the material, and that no allegation of manipulation was put to Mr Rehman. Counsel therefore submitted that the Respondent’s response to the first disciplinary process was reasonable and proportionate and therefore could not constitute penalisation.

Turning to the dismissal, Counsel submitted that the second disciplinary process arose months later, after the Complainant’s allegations had been investigated and not substantiated. The dismissal was said to arise from a discrete incident involving the Ministry of Energy deal, which Counsel characterised as a commercial disagreement regarding discount levels. Counsel argued that an “unjustified discount” did not equate to illegality or wrongdoing, and that the Complainant knowingly overrode a discount approved at senior executive level.

Counsel contended that the Complainant’s actions amounted to insubordination and rejected the characterisation of those actions as a conscientious objection and submitted that the timing of the incident at quarter end, together with the Complainant’s failure to escalate concerns through appropriate channels, undermined his explanation.

Counsel for the Respondent submitted that there was no evidence that the Complainant would have been subjected to any disciplinary action, including dismissal, but for his admitted act of insubordination. It was emphasised that the Complainant accepted recalling the quote and knew that the discount had been approved at senior executive level, and that the instruction given was neither unlawful nor unreasonable.

Counsel argued that dismissal fell within the band of reasonable responses open to a reasonable employer, particularly given the Complainant’s seniority and the impact of deliberately disrupting a critical transaction at quarter end. It was submitted that there were substantial and well-founded grounds for the dismissal and that it did not amount to an unfair dismissal.

I took a comprehensive note of the evidence and submissions, and they are cited as appropriate in the findings and conclusions section of this decision.

Complainant Submission:

Counsel states that the Complainant commenced employment with the Respondent in November 2018 as a senior sales employee in the Middle East region. He accrued over five years’ service, and was dismissed on 22 July 2024, with the dismissal upheld on appeal on 28 August 2024. The Complainant’s case is that he made a series of protected disclosures from November 2023 through February and March 2024 concerning serious wrongdoing encountered in a work-related context. These included alleged bribery and kickbacks involving a distributor Company, Company X. Counsel submits the matters engaged corporate compliance obligations and international anti-corruption law. Counsel contends that these disclosures triggered retaliatory conduct by the Respondent, culminating first in a written warning in May 2024 and ultimately in dismissal, and that both disciplinary processes constituted penalisation and unfair dismissal rather than legitimate performance or conduct management.

Counsel contends that the first disciplinary process, culminating in a written warning dated 17 May 2024, constituted penalisation within the meaning of section 3(1) of the PDA.  Counsel rejects the proposition that it was a legitimate process and draws attention to the absence of comparable treatment of his line manager, Abdul Rehman, who was centrally involved in the conduct relied upon.

Relying on Conway v Department of Agriculture, Food and the Marine [2021] 32 E.L.R. 142,  Counsel submits that once penalisation is established, the burden shifts to the Respondent to prove otherwise.

Counsel further rejects the legitimacy of the second disciplinary process, which culminated in dismissal. It is contended that the dismissal was unfair both under section 6(1) UDA and under section 6(2)(ba) UDA, as a dismissal connected to protected disclosures.

Counsel argues that the Respondent’s assertion that the Complainant bears the burden of proving causation under section 6 UDA is rejected as legally incorrect. Counsel relies on the statutory presumptions under sections 5(8) and 12(7)(c) of the PDA, which place the evidential and legal burden on the Respondent.

The Respondent has admitted that the Complainant made disclosures in November 2023 and February/March 2024, but disputes that they qualify as protected disclosures. Counsel submits that this is a mischaracterisation. Under section 5(2) of the PDA, it is sufficient that the information came to the Complainant’s attention in a work-related context. The wrongdoing alleged involved conduct at sufficient seniority within the organisation such that it is attributable to the Respondent and/or engages vicarious liability. Section 5(4) of the Act provides that it is immaterial whether the wrongdoing occurred inside or outside the State, or under Irish or foreign law, a matter of relevance given the international dimension of the case.

Counsel asserts that section 5(8) of the PDA creates a statutory presumption that the disclosures made were protected disclosures, with the evidential and legal burden resting on the Respondent to rebut that presumption on the balance of probabilities. Counsel relied on Baranya v Rosderra Irish Meats Group Ltd [2022] 2 I.R. 97, where the Supreme Court confirmed the low threshold for protection, holding that a disclosure need only contain information which “tends to show” a relevant wrongdoing when it stated:

“words expressly or by necessary implication amount to an allegation tending to show” the relevant wrongdoing and the allegation must “contain such information – however basic, pithy or concise – which, to use the language of s. 5(2) of the 2014 Act, “tends to show one or more relevant wrongdoings” on the part of the employer: to adopt the words of Sales LJ regarding a parallel provision in the corresponding UK legislation, the disclosure must have “sufficient factual content and specificity for this purpose: see Kilraine v. Wandsworth LBC [2018] ICR 1850 at 1861, even if it does merely by necessary implication.”

The Court of Appeal in Barrett v Commissioner of An Garda Síochána and Minister for Justice [2023] 34 E.L.R. 165 (Court of Appeal) confirmed that each element of the statutory definition of protected disclosure is presumed satisfied unless rebutted by the Respondent on the balance of probabilities when it stated. Counsel further cited Barrett (High Court) [2022] 33 E.L.R. 140, where Stack J. stated:

“A disclosure of alleged wrongdoing may be reasonable even though it is ultimately found to be unsubstantiated.” The Court further held that it is an error to inquire into whether allegations are factually correct; the relevant question is whether the worker had a reasonable belief, assessed in light of all the circumstances.”

In relation to penalisation and dismissal, Counsel submits that section 12(7)(C) of the PDA presumes that any detriment suffered occurred because of the making of a protected disclosure unless the employer proves duly justified grounds. The Complainant relies on Conway v Department of Agriculture, Food and the Marine [2021] 32 E.L.R. 142 and Barrett to assert that disciplinary sanctions, unfair procedures, marginalisation, and dismissal fall within the non-exhaustive definition of penalisation. It is contended that the written warning and dismissal were contextually linked to the disclosures, that the Respondent failed to operate lawful whistleblowing procedures under section 6(3) of the Act. Counsel further argues that the investigative steps relied upon by the Respondent were selective and designed to divert attention from the original disclosures. Counsel submits that the asserted justification of gross insubordination is a pretext and that the Respondent bears the burden of proof under section 6 of the UDA. Counsel argues that the dismissal was unfair both generally under section 6(1) and specifically under section 6(2)(ba) as a dismissal connected to protected disclosures.

On causation and connection, Counsel relies on Irish, UK, and EU authorities to argue that the appropriate test is a “reason why” or material influence test rather than a strict “but for” causation analysis. Cases referred to in this regard were Nagarajan v London Regional Transport [2000] 1 A.C. 501, a discrimination case where the penalisation of the Complainant by the Respondent’s servants or agents can occur consciously or unconsciously. The House of Lords confirmed that it is unnecessary to establish conscious motivation for the reasons underpinning discrimination. Counsel argues that this has equal application, as a matter of legal principle, as whistleblower penalisation. The motivation did not have to be conscious or possess any malice, as long as it represented a significant factor in the employer's decision.

In Barrett v Commissioner of An Garda Síochána and Minister for Justice the Court of Appeal recognised that there are many formulations being used for the connection test and that the matter is yet to be determined by the Superior Courts. Counsel points out the Court was prepared to follow the ‘reasons why test’, as stated by the Court of Appeal of England & Wales in Jesudason v. Alder Hey Children’s NHS Foundation Trust [2020] I.C.R. 1226. That is a test, which involves a question of fact, is based on plausible and credible evidence, and is not strictly to establish causation, in the classic legal sense.

Counsel submits that Jesudason also approved of Chief Constable of West Yorkshire v Kahn I.C.R. 1065 in which the House of Lords had pointed out :

“in the similar context of discrimination on racial grounds”, that this is not strictly a causation test within the usual meaning of that term; it can more aptly be described as a “reason why” test: “Contrary to views sometimes stated, the third ingredient (‘by reason that’) does not raise a question of causation as that expression is usually understood. Causation is a slippery word, but normally it is used to describe a legal exercise. From the many events leading up to the crucial happening, the court selects one or more of them which the law regards as causative of the happening. Sometimes the court may look for the ‘operative’ cause, or the ‘effective’ cause. Sometimes it may apply a ‘but for’ approach. For the reasons I sought to explain in Nagarajan v London Regional Transport ([2001] 1 A.C. 502, 510−512), a causation exercise of this type is not required either by s.1(1)(a) or s.2. The phrases ‘on racial grounds’ and ‘by reason that’ denote a different exercise: why did the alleged discriminator act as he did? What, consciously or unconsciously, was his reason? Unlike causation, this is a subjective test. Causation is a legal conclusion. The reason why a person acted as he did is a question of fact.”

Counsel cites Monaghan v Aidan & Henrietta McGrath Partnership [2017] 28 E.L.R. 8, where the Labour Court stated that the principles enunciated in O’Neill v Toni and Guy Blackrock Ltd are valid for establishing causation in the context of a claim for penalisation under s. 12 and Schedule 2 of the 2014 Act. The Labour Court considered the motives which influenced the employer to penalise the complainant. The Court was satisfied that her suspension was influenced by the complaints made by her prior to and during an investigation. The undue haste (with which the suspension was affected) without giving the worker an opportunity to comment (on the investigation report having been invited to do so), reinforced the Court’s view that the protected disclosure was an operative reason for suspending the complainant. Counsel wishes it to be noted that this was before the Barrett decision.

Counsel further cited  Dougan & Clarke v Lifeline Ambulances Ltd [2018] 29 E.L.R. 210. Where the Circuit Court accepted that temporal proximity, animus, and circumstantial evidence may establish the requisite connection.

Counsel relies on EU law, Convention principles, and Strasbourg jurisprudence to support the proposition that whistleblowers face inherent evidential difficulties in proving retaliation and that the burden must rest on the employer to disprove any link between reporting and adverse treatment.

In this regard, reliance is placed on Recital 93 of Directive (EU) 2019/1937, which states in full:

“Retaliation is likely to be presented as being justified on grounds other than the reporting and it can be very difficult for reporting persons to prove the link between the reporting and the retaliation, whilst the perpetrators of retaliation may have greater power and resources to document the action taken and the reasoning. The Respondents must be required to demonstrate that the action taken was not linked in any way to the reporting or the public disclosure.”

Counsel further relies on domestic authority addressing what is described as covert or disguised penalisation. In Clarke v CGI Food Services Ltd, Humphreys J. is cited as recognising how an unscrupulous employer may fabricate an ostensibly legitimate process to “performance manage” a whistleblower out of employment for apparently plausible reasons. The Court emphasised the obligation on courts and tribunals to “penetrate” such conduct, which was characterised as “manipulative”.

Counsel also invokes Convention rights. It is contended that the alleged penalisation constitutes a breach of the right to freedom of expression under Article 10 of the European Convention on Human Rights, including the right to impart information to the public and the press, as recognised in Halet v Luxembourg (Application no. 21884/18, 11 May 2021). Reliance is also placed on the corresponding right under Article 11 of the Charter of Fundamental Rights of the European Union. In that context, Counsel cites Recital 10 of Directive (EU) 2019/1937, which provides:

“Persons who report information about threats or harm to the public interest obtained in the context of their work-related activities make use of their right to freedom of expression. The right to freedom of expression and information, enshrined in Article 11 of the Charter and in Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms, encompasses the right to receive and impart information as well as the freedom and pluralism of the media. Accordingly, this Directive draws upon the case law of the European Court of Human Rights (ECHR) on the right to freedom of expression, and the principles developed on this basis by the Council of Europe in its Recommendation on the Protection of Whistleblowers adopted by its Committee of Ministers on 30 April 2014.”

Further reliance is placed on recent Strasbourg authority. In Hrachya Harutyunyan v Armenia (Application no. 15028/16, judgment of 27 August 2024), the European Court of Human Rights reaffirmed the central role of whistleblowers in exposing information in the public interest and ensuring accountability for alleged misconduct. Armenia was found to have violated the whistleblower’s rights under Article 10 ECHR. Counsel highlights that this judgment represents the first consideration by the ECtHR of protected disclosures made internally, as distinct from external disclosures, and that the Court confirmed that information concerning unlawful acts or practices is “undeniably of particularly strong public interest”.

Counsel also relies on the Council of Europe Recommendation on the Protection of Whistleblowers, adopted by the Committee of Ministers on 30 April 2014 (Recommendation CM/Rec(2014)7). Particular emphasis is placed on Principle 25, which allocates the burden of proof in whistleblower penalisation cases. The principle is cited in full as follows:

“… by an employer against the interests of the individual who made the report or disclosure in the public interest on the employer.”

It is further explained in the Recommendation as operating in the following manner:

“Once an employee demonstrates a prima facie case that he or she made a public interest report or disclosure and suffered a detriment, the burden shifts onto the employer, who must then prove that any such action was fair and not linked in any way to the whistleblowing.”

Counsel relies on the European Convention on Human Rights Act 2003, which gives further effect, subject to the Constitution, to certain provisions of the Convention. Specific reliance is placed on:

• Section 2, which governs the obligation of courts and tribunals, including the Labour Court, to interpret and apply statutory provisions and rules of law in a manner compatible with the State’s obligations under the Convention;
• Section 3, which governs the obligation of publicly funded bodies, as it pertains to the Complainant, to perform their functions in a manner compatible with the State’s Convention obligations; and
• Section 4, which requires courts and tribunals to take notice of decisions of the Committee of Ministers of the Council of Europe and, when interpreting and applying Convention provisions, to take due account of the principles laid down in such decisions.

These authorities are relied upon by in support of the principle of the effectiveness of whistleblower protections, and in particular the allocation of the burden of proof and the need for robust scrutiny of alleged retaliatory measures.  

In relation to redress, Counsel submits that, where dismissal is found to be connected to protected disclosures, the compensation ceiling increases from two years to five years’ remuneration, and that redress must be effective, proportionate, and dissuasive in accordance with Directive (EU) 2019/1937 and the principles in Von Colson and Kamann v Land Nordrhein-Westfalen [1984] ECR 1891. The Complainant seeks compensation for actual and prospective loss of income, loss of redundancy entitlements, and associated financial detriment, supported by evidence of mitigation efforts  and contends that the onus lies on the Respondent to establish any failure to mitigate or any contributory conduct, relying on Payzu v Saunders [1919] 2 K.B. 581, Geest plc v Lansiquot [2003] 1 All E.R. 383, and Rosberg Partners v LK Shields [2013] IEHC 494. Counsel further contends that domestic limits on compensation must be disapplied insofar as they conflict with EU law requirements for full and effective compensation.

Counsel concludes by seeking findings that the Complainant made protected disclosures, that he was subjected to penalisation and unfair dismissal by reason of those disclosures. Furthermore, Counsel submits that the Respondent failed to rebut the statutory presumptions, and that the Adjudication Officer should award maximum compensation up to five years’ remuneration, together with such further relief as is just and equitable in all the circumstances.

Evidence of the Complainant:

The Complainant outlined his employment history with the Respondent, stating that he commenced employment in 2018 and progressed rapidly within the organisation. He received a number of promotions and significant increases in remuneration and, by the time his employment ended, his total annual remuneration package was in the region of €190,000. He was employed in a senior sales role with responsibility for key accounts in the Middle East region. He described himself as an experienced sales professional with a strong performance record and stated that his role required him to exercise judgment not only in achieving sales targets but also in ensuring that transactions were commercially justified and compliant with internal policies, particularly given the Respondent’s regulatory exposure as a multinational organisation.

The Complainant gave evidence that from as early as 2021 he had concerns regarding discounting practices involving a particular distributor, Company X. He stated that, in his view, the level of discounting being applied did not make commercial sense and was excessive when compared with normal market practice. He further alleged that, in 2021, an attempted bribe had been made to him indirectly through management. He accepted that he did not formally report this matter at the time, explaining that he was unfamiliar with the Respondent’s whistleblowing procedures and believed that raising concerns through management channels was the appropriate course. He stated that he had informed his line manager, Mr Rehman, of the attempted bribe. He also accepted that he continued to work with Company X for a prolonged period after this alleged incident, explaining that this formed part of his assigned responsibilities.

The Complainant’s evidence was that his concerns escalated significantly from late 2023 onwards. In November 2023, he raised concerns with the Respondent’s Legal department regarding discounting practices and suspected side arrangements. He regarded these as serious compliance risks associated with Company X. He characterised the communications as protected disclosures. He accepted that meetings took place with Legal and HR in November 2023 and again in February 2024, during which he articulated his belief that the practices in question were improper and warranted investigation. He accepted that he did not have documentary proof of corruption or kickbacks but maintained that this was not required of him.

The Complainant accepted that, following the raising of these concerns, an internal review was conducted by the Respondent, including the engagement of external investigators. He stated that he was informed in December 2023 that the investigation concluded that his allegations were not substantiated. He did not know that this investigation was labelled “Project Oasis” and only heard about it for the first time at the hearing. While he disputed the adequacy and outcome of the investigation and expressed dissatisfaction with the lack of transparency, he accepted that he was told that no wrongdoing had been found and that the matter was regarded as closed.

He further gave evidence that, in the course of this review, scrutiny extended to his own conduct and communications, including WhatsApp messages and the practice of booking advance or “soft” orders (SPOs). He accepted that he had engaged in SPO practices but stated that this was widespread within the organisation and often done at the direction, or with the knowledge, of his line manager, Mr Rehman. He maintained that he did not consider this practice to be improper at the time and believed it to be tolerated within the Respondent’s sales culture.

The Complainant described a first disciplinary process arising from these matters, which resulted in a written warning. He said he was shocked at receiving a written warning. He stated that he regarded this process as retaliatory and as a consequence of having raised concerns. He pointed to what he perceived to be a disparity in treatment between himself and Mr Rehman, whom he believed was not disciplined to the same extent for comparable conduct.

Turning to the events leading to his dismissal, the Complainant gave detailed evidence concerning a significant Ministry of Energy contract in a Middle Eastern state. He stated that he had long-standing concerns about the involvement of Company X in this deal and, in particular about the scale of the discount being applied. He gave evidence that a discount of approximately 62 % was proposed late in the sales quarter and that, in his view, the commercial justification for that discount was inadequate.

The Complainant accepted that he knew the discount had been approved at senior management level, including beyond his immediate line manager. He accepted in evidence that he was aware that approval had been granted at multiple levels, stating, “I was aware that it had been approved – not just by my manager but at higher levels.” However, he maintained that he believed the approval was based on incomplete or misleading information. He said he was “so angry” with the deal. He said he raised it with legal who told him in relation to Company X “They are partners-they can do what they want”.

Acting on that belief, the Complainant accepted that he unilaterally recalled or cancelled the quotation in the system without prior authorisation. He accepted that this had the effect of preventing the deal from proceeding at the end of the sales quarter. He accepted in clear terms that, “I pulled the discount,” and that this action blocked the transaction from progressing through the system.

The Complainant stated that his intention was not to permanently prevent the transaction but to force engagement and escalation. He maintained that he believed normal escalation channels had proved ineffective and that recalling the quote was the only mechanism available to him to draw attention to what he regarded as a serious compliance issue. He accepted that he did not escalate the matter directly to the senior approvers at the relevant time, explaining that he did not wish to disturb senior management outside working hours.

He described his dismissal as devastating and stated that he believed it was the culmination of a process that began when he raised uncomfortable concerns about compliance and probity within the organisation.

Cross-Examination of the Complainant

Under cross-examination, the Complainant accepted that he did not have documentary proof of kickbacks, or side agreements involving Company X. He accepted that the Respondent investigated his allegations, including through the engagement of external investigators, and that no evidence substantiating those allegations was found. He was brought to the minutes of a meeting with Ms Sarah Coughlan regarding the allegations and in reply to the question whether there were any inaccuracies he said “90% accurate” without further elaboration.

He acknowledged that he was informed prior to the Ministry of Energy deal incident that the investigation into his disclosures had concluded and that he understood the Respondent’s position was that the matter was closed.

The Complainant agreed that he had engaged in SPO practices and accepted that he had received compliance training indicating that such practices were prohibited. He accepted that he understood that such conduct could amount to serious misconduct, including dismissal.

In relation to the Ministry of Energy deal, the Complainant accepted that he was aware that the discount had been approved at senior management level. He agreed that he did not escalate his concerns to those senior approvers at the time and that he acted unilaterally in recalling the quote. He accepted that recalling the quote had the effect of blocking the deal from proceeding and acknowledged that this occurred at a critical commercial juncture. He accepted that he had taken this step more than once.

The Complainant was challenged on his explanation that he did not escalate the matter because he did not wish to disturb senior management outside working hours. It was put to him that this was inconsistent with his evidence that he expected his actions to prompt engagement from those same individuals. He maintained that he acted in good faith and believed that escalation would follow once the issue was brought into focus.

He was also questioned on his continued dealings with Company X both before and after raising concerns. He accepted that he continued to conduct business with Company X but maintained that his objection related specifically to the scale of the discount applied in the Ministry of Energy deal, rather than to all dealings with that partner.

Closing Argument:

Mr Harty SC submits that the Respondent’s closing position, relying on the asserted absence of even a “scintilla of evidence”, is untenable in circumstances where almost none of the relevant decision-makers or senior personnel were called to give evidence on behalf of the Respondent. Counsel argues that it is wholly unreasonable to criticise the Complainant for failing to present a complete picture where the Respondent itself, by its choices, declined to present that picture. It is contended that the Respondent deliberately “painted no picture” and now seeks to benefit from evidential gaps of its own making.

Counsel submits that the Respondent called only three witnesses and that this significantly weakened its case. He emphasises that the Complainant’s line manager did not attend for in-person cross-examination despite the hearing having been scheduled to facilitate his physical attendance, instead giving evidence remotely, which counsel argues created avoidable difficulties. Counsel contends that this witness’s evidence was of limited assistance, noting that he accepted he suffered no sanction arising from the first disciplinary process and did not claim to have been discriminated against. Counsel further highlights that this same individual initiated the complaint of insubordination which led to the second disciplinary process, notwithstanding that he was also the person against whom the Complainant had previously raised concerns and submits that he declined to attend the jurisdiction to give full evidence on that issue.

Counsel contends that, in substance, the only Respondent witness who gave detailed evidence was Ms Sarah Coughlan.  While she addressed the investigative process, counsel submits that her evidence was characterised by repeated lapses of memory on central issues and consisted largely of general references to investigations and document reviews without production or engagement with the underlying material. He further notes that matters said to have been insufficiently put to the line manager were not substantively addressed by this witness either.

In relation to the HR manager, Ms Sam Bengston, counsel submits that her evidence on the first disciplinary process was unclear and failed to establish who made the decision, what decision was taken, or the reasoning behind it. He argues that this lack of clarity heightens the importance of the Respondent’s failure to call other relevant witnesses.

Counsel places particular emphasis on the absence of evidence from key figures involved in the disciplinary and appeal processes. He notes that the individual who initiated both disciplinary processes did not give evidence, nor did the decision-maker in the first disciplinary process, the appeal officer who upheld that sanction, or the decision-maker who rejected the appeal against dismissal. He further submits that the Respondent’s case relies heavily on the asserted views and decisions of senior management figures who were said to have authorised or endorsed the actions taken, none of whom gave evidence. Counsel argues that the Adjudication Officer is being asked to rely on second-hand accounts of what these individuals allegedly said or decided, conveyed through the evidence of the line manager or through submissions, which he submits is an impermissible approach.

Counsel submits that if senior management had authorised the conduct said to amount to insubordination, or had reached conclusions material to the dismissal, they should have attended to give direct evidence. He argues that reliance on emails or notes is insufficient, as it deprives the WRC of the ability to assess the context in which decisions were made, the information available to the decision-makers, and the basis upon which their conclusions were reached.

Counsel further submits that the allegation of insubordination rests solely on the evidence of Mr Rehman. He argues that there is no independent evidence that the conduct in question amounted to insubordination or that it was necessary for the transaction to be completed by 1 July, as no other witness addressed those matters. He contends that the Respondent’s case amounts to an uncritical acceptance of the line manager’s version of events, notwithstanding that he was the subject of earlier complaints by the Complainant.

Counsel accepts that the Tribunal cannot substitute its own decision for that of the employer but submits that it cannot be satisfied that the decision was fair in the absence of evidence from the actual decision-makers explaining how decisions were reached and how competing accounts were evaluated. He contends that the processes were rushed and lacked proper consideration.

Counsel submits that there is no evidence of a proper investigation into the Complainant’s concerns and that it is immaterial whether those concerns were ultimately substantiated or amounted to criminal conduct, as the statutory test is one of reasonable belief. He contends that the Complainant raised concerns about what he believed to be improper and corrupt practices affecting the company’s income and potentially its shareholders, and that he was subjected shortly thereafter to two disciplinary processes, both instigated in substance by the individual against whom he had complained. Counsel argues that this sequence constitutes clear evidence of penalisation and relies on Clarke v CGI Food Services Ltdto submit that the failure to call central witnesses is itself indicative of retaliatory motive and is a matter the WRC is entitled to consider when assessing causation.

I took a comprehensive note of the evidence and submissions, and they are cited as appropriate in the findings and conclusions section of this decision.

Having reviewed all the evidence, submissions, documentation and legal authorities before me, I approach this in a structured sequence. I must first determine, as a matter of fact and law, whether the communications relied upon by the Complainant constitute protected disclosures within the meaning of the Protected Disclosures Act 2014, (“PDA”), applying the statutory definitions and presumptions. If that threshold is met, I must then consider whether the Complainant was dismissed for making those disclosures and, furthermore whether the imposition of an earlier written warning   amounted to penalisation. In parallel, I must assess the complaint of general unfair dismissal under the Unfair Dismissals Act 1977, as amended, (“UDA”) examining whether the Respondent has established that the dismissal was for substantial grounds and fell within the range of reasonable responses open to an employer.

Did the Complainant make Protected Disclosures?

Section 5 of the PDA, in its relevant parts, provides:

(1) For the purposes of this Act “protected disclosure” means, subject to subsection (6) and sections 17 and 18, a disclosure of relevant information (whether before or after the date of the passing of this Act) made by a worker in the manner specified in section 6, 7, 7B, 8, 9 or 10.

(2) For the purposes of this Act information is “relevant information” if—

(a) in the reasonable belief of the worker, it tends to show one or more relevant wrongdoings, and

(b) it came to the attention of the worker in a work-related context.

(3) The following matters are relevant wrongdoings for the purposes of this Act—

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

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

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

(4) For the purposes of subsection (3) it is immaterial whether a relevant wrongdoing occurred, occurs or would occur in the State or elsewhere and whether the law applying to it is that of the State or that of any other country or territory.

(5) A matter is not a relevant wrongdoing if it is a matter which it is the function of the worker or the worker's employer to detect, investigate or prosecute and does not consist of or involve an act or omission on the part of the employer.

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

(7) The motivation for making a disclosure is irrelevant to whether or not it is a protected disclosure.

(8) In proceedings involving an issue as to whether a disclosure is a protected disclosure it shall be presumed, until the contrary is proved, that it is.

I am satisfied that the communications relied upon by the Complainant meet the statutory definition of a protected disclosure within the meaning of section 5 of the PDA. In reaching this conclusion, I have applied the principles articulated by the Court of Appeal in Barrett v Commissioner of An Garda Síochána and Minister for Justice [2023] 34 E.L.R. 165, as opened by both parties, which provides authoritative guidance on the operation of the statutory presumptions and the assessment of “reasonable belief”.

Regarding presumptions, the Court stated:

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

Barrett  confirms that the statutory presumption applies to every element of the definition of a protected disclosure. That presumption may be rebutted on the balance of probabilities, but only if a respondent succeeds in disproving any one element of the definition. A complainant is not required to establish a prima facie case or adduce affirmative evidence that the disclosure meets the statutory criteria; rather, the determination turns on whether a respondent has discharged the burden of proving that the disclosure was not a protected disclosure.

The Court further emphasised that the test of reasonable belief is not concerned with whether the alleged wrongdoing is ultimately substantiated, but whether, at the time of the disclosure, the worker had a belief which was objectively reasonable having regard to the information available to him and the surrounding circumstances. A disclosure may therefore qualify for protection even where investigations later conclude that no wrongdoing occurred, provided the belief was reasonably held. Ni Raifeartaigh J. stated:

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

In the present case, the Respondent has accepted in its submissions that the Complainant made reports in November 2023 and February 2024 concerning alleged kickbacks in the operation of side agreements, and improper financial arrangements involving partners in the Middle East region. Those matters were plainly raised in a work-related context and related to potential breaches of legal and regulatory obligations, including bribery and financial misconduct, which, I am satisfied, fall within the scope of “relevant wrongdoings” as defined by section 5(3) of the 2014 Act. The Complainant’s submissions expressly rely on section 5(8) of the Act and Barrett in asserting that there is no burden on him to prove the truth of the allegations, only that he held a reasonable belief that the information disclosed tended to show wrongdoing.

I am satisfied from the hearing evidence that the Complainant’s belief was reasonably held. In his oral evidence, he described the basis upon which the concerns arose including his exposure to communications with partners, and his understanding of the Respondent’s compliance obligations in high-risk jurisdictions. I note that the Complainant consistently maintained that the concerns arose from matters encountered in the course of his duties and that he raised them internally to senior personnel. There was no suggestion in cross-examination that these concerns were fabricated or wholly speculative, nor was evidence adduced to demonstrate that no reasonable person in the Complainant’s position, with access to the same information, could have held such a belief at the time.

Having regard to the evidence and the direction in Barrett, I find that the Respondent has not displaced the statutory presumption under section 5(8) of the Act, I therefore conclude that the disclosures relied upon by the Complainant constitute protected disclosures within the meaning of the PDA.

Was the Complainant dismissed because he made Protected Disclosures?

Section 6(2) of the UDA deals with Unfair Dismissal relating to protected disclosures where it states:

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

…(ba) the employee having made a protected disclosure”

In general, unfair dismissal cases the burden of proof shifts to an employer to show that a dismissal was unfair in respects. However, this burden shifts to the employee when a specific claim of penalisation by dismissal is argued. The extent of the burden was described in the Circuit Court case of Dougan and Clarke v Lifeline Ambulances Ltd [2018] E.L.R. 210  which involved an application for interim relief to the Circuit Court pursuant to Schedule 1 of the PDA. Judge Comerford stated:

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

I am satisfied that the statutory test under section 6(2)(ba) is a causation test, a view reiterated by Circuit Court Judge Comerford in Dougan and Clarke.   It is not sufficient that a protected disclosure was made and that a dismissal later occurred. The question is whether, on the facts, the making of the disclosure was the operative reason for the dismissal, to the level required by the Act, namely that the dismissal resulted “wholly or mainly” from the protected disclosure. Counsel for the Complainant’s believes the scope of the test should be extended beyond this measurement  and he relies on Irish, UK, and EU authorities to argue that the appropriate test is a “reason why” or material influence test rather than a strict “but for” causation analysis. I will address this position below.  

On the chronology, I attach weight to the time gap and the sequence of intervening events. The first concerns were raised in late 2023 and early 2024, and the dismissal followed in July 2024 and was upheld on appeal in August 2024.  In that intervening period, two separate disciplinary processes occurred, each with its own stated subject-matter, decision-maker, and appeal stage. The first resulted in a written warning (later reduced in duration on appeal). The second resulted in dismissal after a further disciplinary process and appeal.

The existence of disciplinary processes, in itself, does not exclude a protected disclosure connection, but the length of interval, coupled with the nature of the misconduct relied upon and the procedural steps taken, requires clear evidence that the disclosure was the primary driver of the decision to dismiss.  

The Respondent accepts that the Complainant raised concerns in and around November 2023 and February/March 2024 regarding alleged “kickbacks” or “side deals” involving trading partners, and it is common case that those concerns were investigated by the Respondent and ultimately found by the Respondent not to be substantiated.  Evidence was given by Ms Sarah Coughlan whereby an outside consultancy was brought in to examine 3,000 communications (Operation Oasis), resulting in inconclusive findings.

Dealing with the dismissal, the Respondent’s submission is that the second disciplinary process was triggered by a further and separate incident in late June/early July 2024 relating to the closing of a significant deal at quarter end, and that this incident was raised internally as a conduct issue at the time i.e. the allegation of insubordination by Mr Abdul Rehman.  The documentary material relied upon by the Respondent included email correspondence and meeting notes in which the Complainant accepted that he recalled quotes in the system because he disagreed with the discounting and that he sought to prevent Company X’s participation in the deal.  I also note that the Complainant’s account, as described in the Respondent’s meeting notes, was that he knew the pricing had been approved at senior level but nonetheless took steps to frustrate or delay implementation of that approval. The Complainant in his own evidence, did not contradict the evidence given by the Respondent relating to his recalling the deal. The Respondent’s case was that this conduct required colleagues to work extensively to close the deal, including bypassing the Complainant within internal systems, and that the Complainant made himself unavailable during the critical period.

In deciding whether the dismissal was wholly or mainly because of the protected disclosure, I considered whether the disclosure played any part in the decision-maker’s reasoning or whether there was evidence at the time of hostility towards the disclosure. I considered also whether the conduct-based reason given for the dismissal was weakened by any inconsistency or changing explanations. I also examined the credibility of the events surrounding the Ministry of Energy deal , as described in the evidence of Ms Bengston and the Complainant.  The dismissal outcome letter, as outlined in the Respondent’s submission, focused on the Complainant’s deliberate interference with an approved sales process and the risk posed to business performance at quarter end.

 The appeal outcome, again as summarised, upheld the dismissal after considering and rejecting the grounds advanced by the Complainant, including his renewed allegations about “side agreements” with a partner and objections to the disciplinary decision-maker’s lack of sales background. I am not satisfied on the evidence before me and on the balance of probabilities, that the Respondent’s decision to dismiss was driven mainly or wholly by the earlier disclosures rather than by the July 2024 incident and the Complainant’s live disciplinary record. The Complainant’s protected disclosure allegations and his assertions about “kickbacks” were repeatedly raised by him, including during the appeal of the dismissal, but the evidence did not establish that these allegations were the operative reason for dismissal, as opposed to background context which the Respondent treated as already investigated and concluded.

in considering the Complainant’s submissions on causation and connection, I have had full regard to the range of Irish, UK and EU authorities relied upon, including Nagarajan v London Regional Transport, Barrett v Commissioner of An Garda Síochána and Minister for Justice, Jesudason v Alder Hey Children’s NHS Foundation Trust, Chief Constable of West Yorkshire v Khan, Monaghan v Aidan & Henrietta McGrath Partnership, Dougan & Clarke v Lifeline Ambulances Ltd, together with the EU and Convention materials cited, including Recital 93 of Directive (EU) 2019/1937 and the observations of Humphreys J. in Clarke v CGI Food Services Ltd.

I accept that these authorities demonstrate that causation is not always to be approached through a narrow or technical “but for” analysis.  It is well established that adverse treatment may arise from a protected disclosure even where the influence of that disclosure is unconscious or indirect, and that tribunals must, where the evidence warrants it, look beyond the stated rationale to determine whether an apparently legitimate explanation masks a retaliatory motive. The House of Lords in Chief Constable of West Yorkshire v Khan  put it succinctly, albeit a discrimination case, when it was stated “…The phrases ‘on racial grounds’ and ‘by reason that’ denote a different exercise: why did the alleged discriminator act as he did? What, consciously or unconsciously, was his reason? Unlike causation, this is a subjective test. Causation is a legal conclusion. The reason why a person acted as he did is a question of fact.”

 I also accept that EU law and Convention principles recognise the particular difficulty whistleblowers may face in proving retaliation and emphasise the need for careful scrutiny of an employer’s explanation for adverse action.

The approach advised above requires a focused inquiry into why the Respondent acted as it did and what, consciously or unconsciously, motivated the decision at the relevant time. The assessment requires me, as far as is possible, to attempt to analyse the motivation of the decision-maker rather than a mere sequence of events. Therefore, I must evaluate the evidence to determine whether the dismissal was motivated by the Respondent’s asserted ground or arose from the protected disclosures of the Complainant, bearing in mind that causation is a legal conclusion, whereas the reason for the act is a question of fact. Ultimately, the application of that principle depends on the facts of the individual case. Even on the broader “reason why” or material influence approach advanced by the Complainant, section 6(2)(ba) of the Unfair Dismissals Act 1977 requires that the dismissal results wholly or mainly from the making of a protected disclosure. The authorities relied upon do not remove that statutory requirement, nor do they dispense with the need for credible evidence, whether direct or inferential, that the disclosure was an operative factor in the decision to dismiss.

On the evidence before me, I am not satisfied that such a connection has been established. This case does not exhibit the features identified in cases such as Monaghanor Dougan & Clarke, where undue haste or circumstantial indicators pointed towards a retaliatory motive. The disclosures relied upon in this instant case were made some months before the dismissal. Ms Sarah Coughlan gave clear and persuasive evidence that the disclosures were subjected to a thorough and careful examination, including the involvement of external consultants, before a conclusion was reached that they were not substantiated. The Complainant was notified of this outcome and advised that he could raise further concerns should any additional evidence come to light.

The evidence in this case clearly demonstrates that the disciplinary process which led to dismissal, arose from a later and discrete incident, which was treated at the time as a serious conduct matter. That process was supported by contemporaneous documentation, as well as by the Complainant’s own evidence concerning his actions. At no stage did the Complainant deny that recalling the deal amounted to gross misconduct. While I am satisfied that the Complainant acted out of conscientious and well-intentioned motives, those motives did not afford him licence to withdraw a sanctioned deal in a precarious manner. I am satisfied that this incident provided a clear and proximate reason for the dismissal, independent of the earlier disclosures. The plain fact of the matter from the evidence is that the Complainant would not have been dismissed had he not recalled the Ministry of Energy deal. I find there was no persuasive evidence that the disclosures featured, consciously or unconsciously, in the reasoning of the decision-makers, nor that the conduct-based explanation was a contrivance or pretext of the type envisaged in Clarke v CGI Food Services Ltd.

In a closing submission, Counsel for the Complainant placed emphasis on the fact that certain senior management personnel were not called by the Respondent to give evidence and invited me to draw adverse inferences from that omission. I have considered that submission carefully considering the evidence actually adduced and the issues I am required to determine.

I do not accept that the absence of additional senior management witnesses materially undermines the Respondent’s case in the circumstances of this complaint. The Respondent called witnesses who were directly involved in, and responsible for, the matters giving rise to the disciplinary processes and the dismissal, including Ms Bengston who made the decision to dismiss the Complainant. The witness gave detailed evidence of the events in question and the reason for the action taken. The Complainant, in evidence, accepted that he had attempted to recall the deal, albeit for genuinely held conscientious reasons. The evidence of all the witnesses at the hearing was tested in cross-examination and was, in its significant parts, supported by contemporaneous documentation.

Having considered the submissions and evidence in this case and adopting also the broader analytical framework urged by the Complainant, and recognising the evidential difficulties inherent in whistleblowing cases, the facts of this case do not support the conclusion that the dismissal occurred because, or “wholly or mainly” because, the Complainant made a protected disclosure. I am satisfied that the dismissal was grounded in conduct-related concerns arising at a later point in time, and for these reasons I find that the Complainant has not established a breach of section 6(2)(ba) of the Unfair Dismissals Act 1977.

In conclusion, I find that the Complainant has not shown that his dismissal was, in substance, a dismissal by reason of having made a protected disclosure, and I therefore do not uphold the complaint insofar as it relies on section 6(2)(ba) of the UDA. This finding is confined to the “wholly or mainly” causation requirement and does not determine, of itself, whether the dismissal was unfair on other statutory grounds, which I address separately under the general provisions of the Unfair Dismissals Acts.

Was the dismissal unfair under the general provisions of the Unfair Dismissal Act?

The reasonableness or otherwise of an employer in carrying out a dismissal is addressed under Section6(7) of the UDA which provides:

"Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if the adjudication officer or the Labour Court, as the case may be, considers it appropriate to do so -

(a)   to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and (b) to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in section 14(1) of this Act or with the provisions of any code of practice referred to in paragraph (d) (inserted by the Unfair Dismissals (Amendment) Act 1993) of section 7(2) of this Act."

The High Court in Governor and Company of the Bank of Ireland v James Reilly [2015] IEHC 241, illuminated this provision further when  Noonan J remarked:

"Section 6(7) makes clear that the court may have regard to the reasonableness of the employer's conduct in relation to the dismissal. That is however not to say that the court or other relevant body may substitute its own judgment as to whether the dismissal was reasonable for that of the employer. The question rather is whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned."

It clearly is not my role to determine whether the Complainant was guilty of the accusations laid against him but instead to determine whether the decision by the Respondent to dismiss him was reasonable and proportionate, based on the information available to it at the material time, and, furthermore, that proper, fair, and impartial procedures were adopted by the Respondent when carrying out the dismissal. 

Under section 6(7) of the UDA, a dismissal is presumed unfair unless the employer shows substantial grounds justifying the dismissal and demonstrates that fair procedures were afforded. The Respondent’s case was that the dismissal arose from misconduct, described as deliberate obstruction of a critical end-of-quarter sales process, against a backdrop of a live disciplinary warning. The Complainant’s case was that the process and outcome were retaliatory and procedurally deficient and that the Respondent’s reliance on “gross insubordination” was misconceived.

On the reason for dismissal, I am satisfied on the evidence that the operative basis relied upon by the Respondent was the Complainant’s conduct in late June/early July 2024 in relation to the  Ministry of Energy deal. The documentary record and the evidence heard were consistent that the Complainant repeatedly recalled or cancelled quotes in the internal system because he disagreed with the discounting and partner approach, notwithstanding that the pricing and structure had been approved at senior level. The Respondent’s evidence was that this conduct created a material risk to closing the deal at quarter end and required colleagues to redo work over a weekend and to bypass the Complainant in internal systems to close.  I also note that, on the Respondent’s account, the Complainant accepted key aspects of the factual matrix during the disciplinary process, including that he recalled the quote and that he knew the pricing had been approved at a higher level.

I am satisfied that this conduct, as found on the evidence, fell within the range of misconduct capable of constituting substantial grounds for dismissal, particularly given the seniority of the role. The Complainant was aware of the commercial significance of quarter-end closings in a sales environment, and the requirement that employees comply with lawful and reasonable managerial instructions even where they disagree with commercial judgment. At the same time he retained the right to escalate concerns through appropriate channels. In circumstances where the Complainant’s disagreement related to the level of discounting and partner participation, I accept the Respondent’s position that the appropriate course was to raise and pursue that disagreement through line management and escalation rather than to disrupt an approved transaction in real time.

While another employer might have imposed a different sanction, my function is not to substitute my view for that of the employer, as per Reilly, but to assess whether dismissal was within the range of reasonable responses open to a reasonable employer in the circumstances. Having regard to the deliberate nature of the interference found on the Complainant’s own evidence and the operational impact at quarter end I am satisfied that the Complainant’s actions were detrimental to the Respondent’s business. The Complainant’s action took place during a time when he was the subject of an active written warning for serious behavioural issues. Taking all the foregoing into account, I am satisfied that dismissal fell within that range and was not unfair under the general provisions of the UDA.

I am also satisfied that fair procedures were afforded. The Respondent’s evidence was that the Complainant was notified in writing of the allegations. He was provided with the supporting material being relied upon and furnished with the relevant policy documents. He was also advised of his right to be accompanied.

 The Complainant was afforded a disciplinary hearing before a designated decision-maker and was then provided with an outcome in writing. He exercised his right of appeal and requested that the appeal be heard by a manager with sales background. An appeal hearing took place at which he was accompanied by a colleague. The appeal officer considered the grounds advanced and upheld the dismissal, noting that no further documentation was provided to support the renewed allegations raised at appeal stage. At no stage did the Complainant deny his actions; his only defence was to attempt to justify them.

 In my view, the structure of the process— written notification, an opportunity to respond, consideration of the Complainant’s explanations, and an appeal—meets the core requirements of fair procedure in the circumstances of this case.

I have considered the Complainant’s contention that the disciplinary processes were not legitimate and that procedural unfairness itself should be treated as evidence of wrongful motive.  I do not accept, on the evidence before me, that the process suffered from such procedural defects as would render the dismissal unfair under the general provisions of section 6 of the UDA.  I do not find that the Complainant was denied notice of the allegations nor denied an opportunity to respond. He was not denied an appeal, nor do I find that the Respondent relied upon shifting or inconsistent reasons for dismissal. The reasons advanced throughout were anchored in the Complainant’s conduct during the end-of-quarter close and the impact that conduct had on the business.

Taking the above into account, I am satisfied that the Respondent has discharged the onus of demonstrating that the dismissal was not an unfair dismissal under the general provisions of the UDA.

Did the first written warning constitute a penalisation finding under section 12(1) and schedule 2 of the PDA?

Section 12 states as follows:

Other protection of employees from penalisation for having made protected disclosure

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

 (2) Subsection (1) does not apply to the dismissal of an employee to whom section 6(2)(ba) of the Unfair Dismissals Act 1977 applies.

(3) Schedule 2 shall have effect in relation to an alleged contravention of subsection (1).

(4) Subsection (3) does not apply in relation to the penalisation of an employee if the employee is within paragraph (d) of section 2(1) of the Unfair Dismissals Act 1977.

(5) Any person who, on examination authorised under paragraph 3(1) of Schedule 2, wilfully makes any material statement which the person knows to be false or does not believe to be true commits an offence and is liable on summary conviction to a class A fine or imprisonment for a term not exceeding 12 months or both.

(6) A person to whom a notice under paragraph 3(2) of Schedule 2 has been given and who refuses or wilfully neglects to attend in accordance with the notice or who, having so attended, refuses to give evidence or refuses or wilfully fails to produce any document to which the notice relates commits an offence and is liable on summary conviction to a class A fine…

…(7C) In any proceedings by an employee under the Workplace Relations Act 2015 in respect of an alleged contravention of subsection (1), the penalisation shall be deemed, for the purposes of this section, to have been as a result of the employee having made a protected disclosure, unless the employer proves that the act or omission concerned was based on duly justified grounds…

Claims under Section 12 (1) of the PDA are governed by a different rule regarding the burden of proof which do not apply to claims governed by the UDA; the most obvious being that the penalisation shall be presumed to have been made because of the protected disclosure which in essence means that the burden of proof now shifts to the Respondent to show that the first written warning was not penalisation of the Complainant for making protected disclosures.

In assessing whether the warning was penalisation “for having made a protected disclosure,” I considered whether the evidence demonstrated that the protected disclosure materially influenced the decision to commence discipline or to impose the warning, as distinct from the disclosure merely forming part of the background chronology. The Complainant’s case is that the disciplinary process should be viewed as retaliatory, particularly where the alleged wrongdoing he reported concerned his line manager, Mr Rehman, and where he asserts his manager did not receive comparable treatment. Mr Rehman gave evidence that he was disciplined but for another reason; that of improper documentation.

The evidence before me was that, during the Respondent’s internal review of communications (described by the Respondent as part of “Project Oasis”), material emerged indicating that the Complainant had engaged in practices contrary to company policy and compliance requirements, including the booking of SPOs and communications suggesting an intention to avoid detection by Finance and Legal. The Complainant did not deny in evidence that he engaged in SPOs and that the conduct was evidenced in contemporaneous message exchanges. He further accepted in cross-examination that he had been aware that arranging SPOs was strictly prohibited by the Respondent.

 In circumstances where the misconduct was both identified through records and substantially admitted, I do not find it persuasive to characterise the first warning as a pretext for retaliation, absent further evidence that the disclosure materially influenced the sanction. Notably, the sanction imposed at first instance was a first written warning, and on appeal it was reduced in duration.  This sequence is not readily consistent with an inference that the Respondent had embarked upon a course of dismissing the Complainant because he had raised concerns or otherwise penalising him. It is widely accepted that where, while investigating protected disclosures made by an employee, it emerges that the employee has engaged in misconduct, the act of making those disclosures does not operate as a shield against any subsequent disciplinary action. It was never envisaged that the legislation would endow such protection.

For these reasons, and applying section 12(7C), I am satisfied that the Respondent has proved that the issuing of the first written warning was based on duly justified grounds, namely the addressing of compliance and misconduct matters on the Complainant’s part and was not imposed because the Complainant had made a protected disclosure. Accordingly, I find that the first written warning did not constitute penalisation contrary to section 12 of the Protected Disclosures Act 2014.  

 Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

CA-00066399-001: For the reasons outlined above I find that the Complainant was not dismissed for having made a protected disclosure within the meaning of the Protected Disclosures Act 2014, and accordingly the dismissal did not result wholly or mainly from any such disclosure for the purposes of section 6(2)(ba) of the Unfair Dismissals Acts 1977 - 2015. I am satisfied that the Respondent has established that the dismissal arose from conduct-related grounds, following a fair and proportionate disciplinary process, and that the Respondent has discharged the burden of showing that the decision to dismiss was based on substantial grounds and fell within the range of reasonable responses open to a reasonable employer. Therefore, the provisions of the Unfair Dismissals Acts 1977-2015 were not transgressed, and the complaint of unfair dismissal, whether framed as a protected disclosure dismissal or as a general unfair dismissal, is not well founded. Therefore, I decide the Complainant was not unfairly dismissed.

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

CA-00066399-003:

For the reasons outlined above in my investigation under Schedule 2 of the Protected Disclosures Act 2014, I find that the complaint of penalisation by nature of receipt of a first written warning was not well founded.

Protected Disclosures Act, Section 6(2)(ba) of the Unfair Dismissals Act, Penalisation.