Complainant

Respondent

Parties

Maire  Griffin

NOD Apiary Ireland Ltd

Representatives

  Self-Represented

 Mr David Van Der Dussen CEO

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint for adjudication by the Workplace Relations Commission under section 85C of the Employment Equality Act

CA-00067640-001 WITHDRAWN

25/11/2024

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

CA-00067641-001

25/11/2024

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

CA-00067653-001 WITHDRAWN

25/11/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00067654-001

25/11/2024

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00067690-001

26/11/2024

The Respondent is an Irish subsidiary of a Canadian-based group operating internationally in the manufacture and distribution of veterinary pharmaceutical products. In or about early 2023, the Respondent commenced preparations to establish regulated operations in Ireland This included securing premises, as well as ensuring regulatory approvals regarding compliance with the Health Products Regulatory Authority (HPRA) regulations on manufactured and imported product.

The Complainant was first engaged by the Respondent in mid-2023 through her company, on a consultancy basis to facilitate the setting up of the Irish operation.  This consultancy engagement ended when she became a direct employee of the Respondent on 1 December 2023 until termination of her employment on 29 August 2024. The Complainant accepts that she has less than 12 months’ service as an employee with the Respondent. Her contract provided for a gross annual salary of €66,000, payable at €5,500 gross per month: net €4156.43. The Hearing dealt with the following complaints:

CA-00067641-001: Unfair Dismissal arising from alleged penalisation for making a protected disclosure Protected Disclosures Act 2014 (PDA) as amended; Unfair Dismissals Act 1977 (UDA) section 6(2)(ba).

CA-00067654-001 Terms of Employment (Information) Act 1994 (the 1994 Act) Complaint regarding the amendment of terms without notice in writing.

CA-00067690-001 Minimum Notice and Terms of Employment Acts1973– Complaint concerning notice on termination.

CA-00067641 – Protected Disclosure / Unfair Dismissal

Evidence of the Complainant

The Complainant’s evidence was that she was employed in a senior role with direct responsibility for regulatory readiness in advance of HPRA inspection. She stated that, from March 2024 onwards, she became increasingly concerned that certain senior managers were prioritising speed and optics over regulatory accuracy.

She described in detail the events of 8 April 2024, immediately prior to an HPRA audit. She stated that a document prepared by the Responsible Person, Mr A, was presented to her for signature, notwithstanding that an alternative document had already been approved in a prior mock audit. She gave evidence that the Compliance Director, Mr B, and Mr A, deliberately left the room, leaving her alone with Mr C, who insisted she sign the document. She stated:

“I said this was planned. He nodded. He stood over me with his hand on the table. I was seated. I said we already had an approved document but I was pressed to sign it.”

She stated that she signed the document under protest, believing that it was signed under duress. She said that she felt refusal would jeopardise the audit and her employment. She described this as a serious compromise of her professional integrity.

The Complainant further gave evidence that, in August 2024, she disclosed this incident to Mr D a non‑executive director of the Respondent, explaining that she believed she had been coerced into signing inaccurate regulatory documentation. She stated that she made this disclosure in confidence and out of concern for compliance.

She gave evidence that within approximately two weeks of this disclosure her employment was terminated, without warning. She went to a meeting that she thought was about some forward planning but was shocked to discover that her employment was terminated without investigation, or disciplinary process. She denied that she had refused to perform her duties, stating:

“I was not refusing to work. I was refusing to sign something that I believed was not compliant. That is not insubordination.”

She stated that no concerns about her performance were raised with her at the time and that she had recently received a bonus for achieving a key regulatory milestone.

The Complainant sought to address the steps she took following her dismissal to mitigate her loss of earnings. She stated that she actively sought alternative employment after the termination of her role and did not remain idle. She explained that she was required to prioritise meeting her immediate financial obligations, including rent, and that this informed the urgency with which she pursued new work.

The Complainant stated that she applied for roles consistent with her qualifications and experience in regulatory, quality, and business development functions. She gave evidence that she engaged with recruitment processes and pursued opportunities both within Ireland and internationally, reflecting the specialised nature of her professional background. She indicated that securing alternative employment in her field was not immediate, given the senior and specialist character of her role and the relatively limited market for such positions.

She further stated that she did not refuse suitable employment and that she made reasonable efforts to reduce her financial loss following dismissal. She rejected any suggestion that she failed to mitigate her loss and maintained that any ongoing loss of earnings arose from the difficulty in securing comparable employment rather than from any lack of effort on her part.

Cross-Examination;

The Complainant rejected the suggestion that she gave disproportionate weight to third-party assessments over the views of the Responsible Person or Compliance Director, stating that her actions were motivated by regulatory risk management and safety considerations. She described tensions with external consultants and senior colleagues concerning documentation and  validation reports, and denied any suggestion that she withheld information or acted incompetently.

The Complainant accepted that she did not sign off on a training plan for an employee, objecting on the basis that it was a read only plan but acknowledged that it was a management instruction for her to do so.

CA-00067654-001 Terms of Employment (Information) Act 1994:

The Complainant stated that following the acquisition of the Irish facility in December 2023, and while she was the sole employee based in Ireland, her role expanded materially beyond her contractual duties as Business Development Manager and Interim Quality Manager. She said she became personally responsible for a range of operational and facilities-related tasks, most notably being continuously on call for out-of-hours fire alarm and security callouts, citing one in particular, and liaising with security and emergency services as required. She maintained that these responsibilities were not specified in her job description nor were they notified to her in writing, While accepting that a degree of flexibility was required in a start-up context, she stated that she did not foresee this level of responsibility and that it went beyond reasonable flexibility. She gave evidence that she raised concerns with HR and management and indicated that her role required formal updating, but she was never issued with a revised contract nor written confirmation of the additional duties.

Cross-Examination:

In cross-examination, the Complainant accepted that her contract contained a clause requiring flexibility in the performance of her duties and acknowledged that, as the only employee in Ireland for a period, she necessarily covered a wide range of functions while the operation was being established. She accepted that her qualifications and experience meant it was reasonable for the Respondent to ask her to act as Interim Quality Manager and that she had not refused to carry out the additional tasks assigned to her. She further accepted that she did not raise a formal written grievance specifically objecting to the additional duties, although she maintained that she raised the issue with HR and management and sought an update to her role. In relation to property management and callouts, she accepted that when another employee was recruited these responsibilities were gradually shared, though she maintained that for a significant period they rested primarily with her. The Complainant rejected the suggestion that the additional duties fell squarely within her original role, reiterating that she had not anticipated continuous on-call responsibility and had not been formally notified in writing of what she regarded as a significant expansion of her duties.

CA-00067690-001 Minimum Notice and Terms of Employment Acts1973:

The Complainant stated that her employment was terminated with immediate effect and that she was not required, nor permitted, to work any notice period. She gave evidence that she received a payment equivalent to approximately three weeks’ wages following the termination but maintained that this did not amount to the provision of minimum notice within the meaning of employment legislation. She stated that she was not informed in advance that her employment was at risk. She was not given notice of termination prior to the decision being implemented and was not afforded any opportunity to continue in employment during a notice period.

The Complainant further stated that she did not understand the payment she received to constitute “garden leave,” as she associated garden leave with advance notice and continued employment during the notice period. She maintained that, in her case, termination was immediate and final on the day it was communicated to her, and that payment was made only after the fact. She stated that she was not provided with any written explanation setting out that the payment was in lieu of statutory notice at the time of dismissal.

Cross-Examination:

In cross-examination, the Respondent put it to the Complainant that the way her employment ended was consistent with standard employment practice where an employer elects to make a payment in lieu of notice rather than require an employee to remain in the workplace. The Respondent explored the Complainant’s understanding of “garden leave,” explaining that it is commonly used to protect both the employer and employee where a contract is terminated abruptly, particularly where there may be operational or commercial risk.

The Complainant was questioned as to whether she accepted that she had received her full entitlement by way of continued pay following termination. It was put to her that she had received approximately three weeks’ full pay after dismissal and that this payment was intended to cover the notice period she would otherwise have worked. The Respondent suggested that this approach avoided potential risk to the business and was not unusual in circumstances where an employment relationship had broken down.

The Respondent further put it to the Complainant that payment in lieu of notice satisfies the employer’s obligations under minimum notice legislation and that there is no requirement that an employee remain actively employed or physically present at work during the notice period. The Complainant was asked to confirm that she understood this practice and that she had, in fact, received the relevant payment.

Closing statement:

In her closing submission, the Complainant maintained that her dismissal was sudden and procedurally unfair. She said  the real reason was because she made a protected disclosure about her concerns around the HPRA audit. She submitted that she was dismissed without warning or without any disciplinary or performance management process. She had no opportunity to respond to concerns, and that the Respondent’s reliance on the phrase “not a good fit” was vague and incapable of justifying summary dismissal.

The Complainant submitted that the Respondent’s evidence demonstrated that the dismissal was not for misconduct, nor for poor performance. No contemporaneous concerns had been put to her prior to termination. She emphasised that she had continued to carry out her duties up to the point of dismissal and that she had received a bonus recent to the dismissal date, which she said was inconsistent with the Respondent’s assertion of loss of confidence. She argued that the Respondent’s explanation amounted to a retrospective explanation rather than a genuine reason for her dismissal the time which she believed was for making a protected disclosure.

In relation to her contractual complaints, the Complainant reiterated that she had been required to carry out substantial additional duties, including continuous out-of-hours responsibility for site security and facilities management, which she submitted went well beyond reasonable flexibility and were never confirmed to her in writing. She argued that this constituted a material change to her terms and conditions of employment without her agreement.

On the issue of minimum notice, the Complainant submitted that she was dismissed with immediate effect and that, while payment was made thereafter, she was not given notice in advance and had no opportunity to process the termination or seek advice. She maintained that this failed to meet the statutory purpose of minimum notice, which she said is intended to afford employees time to adjust and plan following dismissal.

CA-00067641 – Protected Disclosure / Unfair Dismissal

On the second day of hearing, the Respondent’s CEO gave evidence that the decision to dismiss the Complainant arose from a loss of confidence in the working relationship and was not disciplinary in nature. He stated that the dismissal was not connected to any protected disclosure and that the Complainant was terminated because she was, in his words, “not a good fit” which he said related primarily to relationship and trust issues rather than technical competence.

The Respondent stated that tensions escalated during the summer of 2024 in the context of regulatory compliance work, particularly interactions with consultants and internal colleagues. He gave evidence that the Complainant adopted what he regarded as an inflexible and confrontational approach, which he said created operational difficulties. He maintained that while he respected the need for regulatory diligence, the way issues were handled became problematic for the business. In particular, the Respondent referred to an incident involving the training of an employee, which he said was a significant factor in his decision-making. He stated that the Complainant refused to sign off on the employee’s training, despite his view that the training was adequate and that the business needed to proceed. He gave evidence that this refusal caused disruption and delay and contributed to his conclusion that the employment relationship was no longer workable. He stated that the Complainant’s position on the issue was, in his view, unreasonable and indicative of a broader breakdown in trust.

The Respondent emphasised that the dismissal was not for misconduct and that no formal disciplinary or performance management process was invoked but felt that her refusal to sanction training was, in effect, “insubordination”. He accepted that the Complainant was not warned that her job was at risk and that no prior disciplinary meetings took place. He explained this by stating that the decision was a senior management judgment that the relationship could not continue, rather than a response to a discrete act of wrongdoing.

Regarding the manner of dismissal, the Respondent stated that the Complainant’s employment was terminated with immediate effect and that she was paid in lieu of notice. He explained that this approach was adopted because, in his view, allowing the Complainant to remain in the workplace posed a risk to the business. He described payment in lieu of notice as a standard mechanism whereby “your contract could be terminated but you’re still being paid for the time that it should have been terminated”, commonly referred to as garden leave.

The Respondent denied that the dismissal was retaliatory or penal in nature and maintained that it was a business decision, taken in circumstances where he believed the working relationship had irretrievably broken down.

Cross-Examination:

In cross-examination, the Respondent was questioned on the rationale for the Complainant’s dismissal and the absence of any formal process leading to that decision. He accepted that the Complainant was dismissed with immediate effect and that no disciplinary or performance management procedure had been invoked prior to termination. He acknowledged that the Complainant had not been placed on any form of performance improvement plan and had not received verbal or written warnings He acknowledged that the Complainant and had not been informed in advance that her employment was at risk, particularly regarding the meeting in August when her employment was terminated.

The Respondent confirmed that the dismissal was not for misconduct and accepted that this was not stated as such in the termination letter. When pressed on the precise reason for dismissal, he reiterated that the Complainant was “not a good fit”, accepting that this phrase appeared in the termination documentation and was relied upon as the explanation for ending the employment relationship.  He agreed that this was a broad characterisation and agreed that it related primarily to relationship and trust issues rather than to any specific failure of competence or breach of policy.

The Respondent was questioned on his assertion that the employment relationship had broken down. It was put to him that the Complainant had continued to carry out her duties up to the point of dismissal and had not been informed that her conduct or approach was unacceptable. He accepted that there was no meeting convened to put concerns to the Complainant or to allow her an opportunity to respond prior to termination. He maintained, however, that senior management was entitled to form a view that the relationship was no longer workable.

CA-00067654-001 Terms of Employment (Information) Act 1994:

The Respondent stated in evidence that the Complainant’s contract of employment contained an express flexibility clause, which he said permitted the assignment of additional duties as required by the needs of the business. He maintained that this clause was particularly relevant given the start-up nature of the Irish operation and the fact that, for a period, the Complainant was the sole employee based in Ireland, at the material time. 

The Respondent gave evidence that the Complainant was hired precisely because of her breadth of experience and seniority, and that she was expected to operate with a high degree of autonomy and flexibility. He rejected the Complainant’s characterisation of certain tasks like responding to a late-night fire alarm calls out as falling outside her role, stating that the duties she described were, in his view, incidental and necessary to establishing and maintaining the site pending regulatory approval. He stated that this included involvement in site readiness and security oversight.

Further In relation to out-of-hours callouts and property-related matters, the Respondent stated that these responsibilities arose because the business was in its early stages and that there were no alternative personnel available locally at that time. He maintained that such duties were temporary in nature and flowed from the operational realities of setting up the business rather than from any unilateral or permanent change to the Complainant’s contractual role.

The Respondent further gave evidence that the Complainant never refused to carry out the duties in question and that he did not understand her to be objecting to them at the time. He accepted that no revised written job description or contract issued but stated that this did not mean that the duties were outside the scope of her employment, given the flexibility clause and the senior nature of her position.

He also stated that once additional staff were recruited, including personnel with facilities-related responsibilities, the burden of these tasks reduced, and responsibilities were redistributed. He rejected the suggestion that the Complainant was expected to carry out these duties indefinitely or that they represented a material breach of her terms and conditions of employment.

CA-00067690-001 Minimum Notice and Terms of Employment Acts1973:

The Respondent evidence was that the Complainant had denied her statutory entitlement to minimum notice, and that the Respondent elected to discharge its obligations by making a payment of three weeks’ pay in lieu of notice rather than requiring her to remain in the workplace following termination. The Respondent stated that the Complainant’s employment was terminated with immediate effect and that this decision was taken to protect the interests of the business in circumstances where the employment relationship had broken down.

The Respondent said that the Complainant was paid following termination and that this payment was intended to cover the applicable notice period. He maintained that there is no legal requirement for an employee to remain physically present at work during a notice period and that payment in lieu of notice is a recognised and lawful practice. In this context, he referred to what he described as “garden leave,” explaining that, in his understanding, “your contract could be terminated but you’re still being paid for the time that it should have been terminated”.

The Respondent accepted that the Complainant was not given advance notice of termination and that she was informed of the decision on the day it took effect. However, he maintained that the subsequent payment satisfied the employer’s obligations under minimum notice legislation and that no further notice was required.

Cross-Examination:

In cross-examination, the Respondent accepted that the Complainant’s employment was terminated with immediate effect and that she was not required or permitted to work any period of notice. He confirmed that the Complainant was instead paid following dismissal and maintained that this payment was intended to satisfy the company’s statutory obligations in respect of minimum notice. He accepted that no advance notice of termination was given and that the Complainant had no opportunity to remain in employment during a notice period or to seek advice prior to dismissal. The Respondent nevertheless maintained that payment in lieu of notice—described by him as garden leave—was a lawful and standard practice where an employment relationship has broken down, and he rejected the suggestion that the Complainant was deprived of her statutory entitlement to minimum notice.

Closing statement:

In his closing submission, the Respondent maintained that the Complainant’s dismissal was a lawful business decision and not connected to any protected disclosure or penalisation. He reiterated that the decision to terminate the employment arose from a breakdown in trust and working relationships.  He asserted that it  did not arise from any single incident or act of misconduct. He emphasised that the Complainant was dismissed because she was “not a good fit” for the organisation going forward, particularly in the context of collaboration, communication, and operational effectiveness.

In relation to the complaint concerning extra duties, the Respondent reiterated that the Complainant’s contract contained a flexibility clause and that the duties she complained of arose from the start-up nature of the Irish operation and her senior position within the organisation. He maintained that these duties were reasonable and operationally necessary. They were temporary and did not amount to a unilateral or impermissible change to her terms and conditions of employment.

On the issue of minimum notice, the Respondent submitted that the Complainant had not suffered any loss, as she was paid following termination in lieu of notice. He maintained that payment in lieu of notice is a recognised and lawful practice and that there is no statutory requirement to provide working notice. He argued that the company had therefore fully discharged its obligations under minimum notice legislation.

Finally, the Respondent rejected the Complainant’s claims in their entirety and submitted that the evidence did not support findings of unfair dismissal by reason of protected disclosure. He asked the Adjudication Officer to find that the Respondent acted reasonably and lawfully in all respects.

CA-00067641 – Protected Disclosure / Unfair Dismissal

I must first determine, as a matter of fact and law, whether the communication  of the Complainant to Mr D, the non-executive director, about her concerns around having to sign a regulatory document under duress, which the Complainant maintains was a protected disclosure, was in fact a protected disclosure  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 such a disclosure under 6(2)(ba) of the Unfair Dismissals Acts 1977-2015 (“the UDA”). It was common case that the Complainant had less than twelve months service as an employee.

Was it a Protected Disclosure?

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.

In the Court of Appeal in Barrett v Commissioner of An Garda Síochána and Minister for Justice [2023] 34 E.L.R. 165, the issue of where the burden of proof lies when it comes to a protected disclosure when it 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 establishes that the statutory presumption applies to every element of a protected disclosure and may only be rebutted, on the balance of probabilities, if the respondent disproves any one element. A complainant need not make out a prima facie case or provide affirmative proof; the issue is whether the respondent has shown that the disclosure was not protected.

Judge Ni Raifeartaigh J. gave further elaboration to the definition of “reasonable belief” in s.5(3) of the PDA:

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 her evidence the Complainant stated in August 2024, she disclosed her signing of an audit document, under duress, as required by the HPRA, to Mr D a non‑executive director of the Respondent, explaining that she believed she had been coerced into signing an inaccurate regulatory document. She stated that she made this disclosure in confidence and out of concern for compliance. This matter was raised squarely during the Complainant’s employment and concerned the accuracy and integrity of a regulatory audit being relied upon for compliance purposes. The disclosure therefore related to a potential failure to comply with legal and regulatory obligations, and to the provision of information to a regulator that may have been materially incorrect or misleading.  I am satisfied that such a disclosure falls within the definition of “relevant wrongdoing” under section 5(3)(b) of the Protected Disclosures Act 2014, which the Complainant reasonably believed involved a potential breach of statutory duties and the improper conduct of a regulatory process.

Was the Complainant dismissed for making the Protected Disclosure?

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”

Section 6(2)(ba) provides that, where a dismissal is alleged to have arisen from the making of a protected disclosure, the Complainant must establish that the dismissal resulted wholly or mainly from that disclosure. This represents a departure from the general position under section 6(1) of the Unfair Dismissals Act, under which a dismissal, once established, is presumed to be unfair unless substantial grounds are advanced by a respondent to justify it. While this places a particular evidential burden on a complainant, it is a factor of relevance in the present case, especially given that the Complainant had less than twelve months service at the time of dismissal, and underscores the importance of carefully examining the causal link between the protected disclosure and the termination of employment.

Although the requirement to establish that a dismissal was “wholly or mainly” attributable to a protected disclosure sets a demanding threshold, the observations of Ní Raifeartaigh. inBarrett are of assistance in assessing how that test may be approached in practice. At paragraph 114 of the judgment, the Court identified a number of considerations relevant to the evaluation of causation, including the following:

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

The evidence establishes that the Complainant raised concerns directly with Mr D regarding the circumstances in which she was required to sign a document. This consisted of her relating the incident where she believed she was forced to act, under duress, and the potential regulatory consequences arising from what she reasonably believed to be potential non-compliance with applicable regulatory requirements. I am satisfied that these concerns were raised in a work-related context and constituted a protected disclosure for the purposes of the legislation (see above).

The Respondent contended in evidence that the dismissal did not arise from the making of any disclosure, but rather from an assessment that the Complainant was not the “correct fit” for the role, and from dissatisfaction with her refusal to sign off on an employee’s training plan. In what seemed like a contradictory position to this, the Respondent also relied on allegations of insubordination but did not contemporaneously document or investigate this allegation. I have considered this explanation carefully. However, having regard to the totality of the evidence, and the ambiguity regarding the reason for dismissal, I find that the reasons for the dismissal as articulated by the Respondent  are not plausible.  

In reaching that conclusion, I attach particular weight to the Respondent’s own evidence, which demonstrates that a significant emphasis was placed on the signing of the disputed document, and that securing that sign-off was regarded as a matter of importance by the Respondent. This is reflected in the evidence of the Complainant. She gave uncontested evidence that three senior and responsible people, including the Compliance director Mr B, and Messrs A and C. She relayed that Mr A and Mr B, deliberately left the room, leaving her alone with Mr C, who insisted she sign the document. She stated:

“I said this was planned. He nodded. He stood over me with his hand on the table. I was seated. I said we already had an approved document but I was pressed to sign it.”

 It is uncontested that the Complainant signed the document while under duress, and the Respondent did not materially challenge her evidence in that regard. This suggested to me that the circumstances as described suggested that the regulatory document was a crucial document that had to be signed. The Complainant’s subsequent raising of concerns about the propriety and regulatory implications of that document occurred shortly thereafter.

I am further satisfied that the reliance placed by the Respondent on issues of “right fit” and on the non-signing off of an employee’s training plan lacks credibility when examined in context. No contemporaneous documentation was produced to demonstrate that concerns regarding the Complainant’s suitability or performance had been raised prior to the protected disclosure. Moreover, the evidence does not support a finding that the training issue was treated, at the time, as a matter of comparable seriousness to that which would reasonably justify dismissal. The argument of not being the “right fit” does not sit the fact that the Complainant had received a performance bonus.  I take cognisance of the direction from Ní Raifeartaigh J. inBarrett where she stated “A court should be alive both to the possibility that actions by the employer which ostensibly appear legitimate on their face may in reality be connected to a protected disclosure…”

I also consider the timing and haste of the dismissal, which followed two weeks after the raising of the Complainant’s protected disclosure. There was no attempt by the Respondent to address the purported shortcomings of the Complainant nor the investigation of the claim of alleged insubordination. The dismissal at a meeting where the Complainant reasonably expected was a normal business meeting made it glaringly clear that the Respondent wanted to expedite the Complainant’s departure.

Having regard to these matters collectively, I am satisfied that the Respondent’s asserted reasons for dismissal are not borne out by the evidence and do not displace the inference that the protected disclosure was the principal and operative cause of the termination of employment. I therefore find that the Complainant has discharged the burden of proof imposed by section 6(2)(ba) of the Unfair Dismissals Acts 1977-2015. Accordingly, I find that the Complainant was unfairly dismissed, wholly or mainly for having made a protected disclosure.

Redress:

Section 7 of the UDA provides:

(1) Where an employee is dismissed and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following [the adjudication officer or the Labour Court], as the case may be, considers appropriate having regard to all the circumstances:

 (a) re-instatement by the employer of the employee in the position which he held immediately before his dismissal on the terms and conditions on which he was employed immediately before his dismissal together with a term that the re-instatement shall be deemed to have commenced on the day of the dismissal, or

(b) re-engagement by the employer of the employee either in the position which he held immediately before his dismissal or in a different position which would be reasonably suitable for him on such terms and conditions as are reasonable having regard to all the circumstances, or

 (c)(i)if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17 of this Act) as is just and equitable having regard to all the circumstances, or

(ii) if the employee incurred no such financial loss, payment to the employee by the employer of such compensation (if any, but not exceeding in amount 4 weeks remuneration in respect of the employment from which he was dismissed calculated as aforesaid) as is just and equitable having regard to all the circumstances, and the reference in the foregoing paragraphs to an employer shall be construed, in a case where the ownership of the business of the employer changes after the dismissal, as references to the person who, by virtue of the change, becomes entitled to such ownership.

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

(2) Without prejudice to the generality of subsection (1) of this section, in determining the amount of compensation payable under that subsection regard shall be had to—

(a) the extent (if any) to which the financial loss referred to in that subsection was attributable to an act, omission or conduct by or on behalf of the employer,

(b) the extent (if any) to which the said financial loss was attributable to an action, omission or conduct by or on behalf of the employee,

(c) the measures (if any) adopted by the employee or, as the case may be, his failure to adopt measures, to mitigate the loss aforesaid,

(d) 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 subsection (1) of section 14 of this Act or with the provisions of any code of practice relating to procedures regarding dismissal approved of by the Minister,

(e) the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the said section 14, and

(f) the extent (if any) to which the conduct of the employee (whether by act or omission) contributed to the dismissal.

(2A) In calculating financial loss for the purposes of subsection (1), payments to the employee—

under the Social Welfare Consolidation Act 2005 in respect of any period following the dismissal concerned, or

(b) under the Income Tax Acts arising by reason of the dismissal, shall be disregarded.]

(2B) Where —

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

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

(3) In this section—

“financial loss”, in relation to the dismissal of an employee, includes any actual loss and any actual loss and any estimated prospective loss of income attributable to the dismissal and the value of any loss or diminution, attributable to the dismissal, of the rights of the employee under the Redundancy Payments Acts 1967 to [2022], or in relation to superannuation;

“remuneration” includes allowances in the nature of pay and benefits in lieu of or in addition to pay.

The Complainant stated that she believed that reinstatement or reengagement were not realistic options based on the breakdown of trust and confidence. She opted instead for compensation if she should be successful in her claim.

In the EAT decision Sheehan v Continental Administration Co. Ltd UD858/1999 it was stated, “a claimant who finds himself out of work should employ a reasonable amount of time each weekday in seeking work. It is not enough to inform agencies that you are available for work nor merely to post an application to various companies seeking work. The time that a claimant finds on his hands is not his own, unless he chooses it to be, but rather to be profitably employed in seeking to mitigate his loss”.

In N Smith & Sons Ltd t/a Ford Smiths of Drogheda v Ragelis (UDD2332) the Respondent contended the dismissed employee has been in business on his own account since his dismissal. The employee gave evidence that he had applied for “seventeen jobs” and gave evidence of speaking “by telephone with six contacts in an eight-month period”. The Labour Court agreed with the WRC that the employee had been unfairly dismissed but regarding his failure to mitigate his loss, they found his efforts falling “very far short of the obligation placed by the Act”, determined no compensation should be awarded thereby varying the €2,000 compensation originally awarded to zero.”

The evidence that the Complainant gave in support of her claim of applying for work was meagre. She spoke vaguely of applying for jobs but with little if any verifiable documentary evidence or quantifiable figures of financial loss. Her efforts seem to be concentrated around seeking work of the nature she was qualified in which on the face of it seems to be a very narrow field. There is an obligation on a complainant to realistically seek any available work to mitigate financial loss, and I saw no evidence of the Complainant casting her net widely in this regard.

 I am satisfied, after hearing all the evidence, that the Complainant did not contribute to her own dismissal.

In considering redress, I have considered the evidence before me in relation to mitigation of loss, which was limited. I have also had regard to the relatively short period of the Complainant’s employment with the Respondent. Having weighed these factors and having considered all of the circumstances of the case, including the nature of the dismissal and the statutory purpose of redress under the Unfair Dismissals Acts, I am satisfied that an award equivalent to six months’ remuneration is just and equitable having regard to all the circumstances in this case. I therefore direct the Respondent to pay the Complainant the compensatory net sum of €24,936.

CA-00067654-001 Terms of Employment (Information) Act 1994:

Section 5 of the 1994 provides:

5.Notification of changes

(1) Subject to subsection (2), whenever a change is made or occurs in any of the particulars of the statement furnished by an employer under section 3, 4 or 6, the employer shall notify the employee in writing of the nature and date of the change as soon as may be thereafter, but not later than—

(a) the day on which the change takes effect, or]

(b) where the change is consequent on the employee being required to work outside the State for a period of more than 1 month, the time of the employee's departure.

(2) Subsection (1) does not apply in relation to a change occurring in provisions of statutes or instruments made under statute [other than a registered employment agreement or employment regulation order] or of any other laws or of any administrative provisions or collective agreements referred to in the statement given under section 3 or 4.

The Complainant contends that there was a fundamental and unilateral change to her terms and conditions of employment, within the meaning of section 5 of the Terms of Employment (Information) Act 1994, arising from the alleged allocation of additional duties during her employment.

I have carefully considered the totality of the evidence adduced on this issue, including the Complainant’s oral testimony, the Respondent’s evidence, and the contractual documentation furnished.

The Complainant gave evidence that she was required to undertake duties which, in her view, went beyond those envisaged at the commencement of her employment. However, when examined in detail, the evidence does not establish that these duties constituted a substantial change to the core nature of her role, nor that they represented a material alteration to the terms previously notified to her.

The Respondent gave consistent evidence that the Complainant’s role was, by its nature, a senior and flexible one, requiring her to respond to operational needs as they arose. This evidence was supported by the written contract of employment, which expressly provided for a degree of flexibility in duties and responsibilities. In cross-examination, the Respondent rejected the proposition that any new duties were imposed, stating that the tasks identified by the Complainant were “part and parcel of the role” and aligned with her existing responsibilities.

I also note that no contemporaneous documentary evidence was produced to demonstrate that the Complainant objected, at the relevant time, to the alleged change in duties on the basis that it constituted a breach of section 5, nor was any written request for an updated statement of terms submitted pursuant to the Act. While the Complainant clearly experienced dissatisfaction in the latter part of her employment, dissatisfaction alone does not equate to a statutory breach.

Having regard to the evidence as a whole, I am not satisfied, on the balance of probabilities, that the Respondent effected a unilateral or fundamental change to the Complainant’s terms and conditions of employment such as would trigger an obligation under section 5 of the Act to issue a revised statement of terms.

Accordingly, I find that the Complainant has not established a contravention of section 5 of the Terms of Employment (Information) Act 1994, and this complaint was not well founded.

CA-00067690-001 Minimum Notice and Terms of Employment Acts1973:

The Complainant submits that the Respondent failed to comply with its obligations under the Minimum Notice and Terms of Employment Act 1973 in circumstances surrounding the termination of her employment.

Section 7 of the 1973 Act states:

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

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

The Complainant received and accepted three weeks’ pay in lieu of notice, when by statute she was entitled to one week’s notice.  In these circumstances, I find that the requirements of the Minimum Notice and Terms of Employment Act 1973 were met. Accordingly, this complaint was not well-founded.

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-00067641 – Protected Disclosure / Unfair Dismissal

For the reasons outlined above I find that the Complainant was dismissed for making a protected disclosure as defined under section 5 of the Protected Disclosures Act 2014 and I am satisfied that she discharged the burden of proof that she was dismissed contrary to section 6(2)(ba) of the Unfair Dismissals Acts 1977-2015. I direct the Respondent to pay the Complainant the compensatory net sum of €24,936.

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-00067654-001 Terms of Employment (Information) Act 1994:

For the reasons outlined above, I find the complaint was not well founded.

CA-00067690-001 Minimum Notice and Terms of Employment Acts1973:

For the reasons outlined above, I find the complaint was not well founded.

Protected Disclosure, Unfair Dismissal, Terms of Employment (Information) Act 1994. Minimum Notice and Terms of Employment Act 1973.