Complainant

Respondent

Parties

Giorgio  Cobau

Comhlucht Iascaireachta Fanad Teoranta t/a  MOWI Ireland

Representatives

Barry Sheehan BL instructed by Laetitia Baker MacCarthy Baker & Co., Solicitors

Sophie Crosbie IBEC

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-00073155-001

05/07/2025

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

CA-00073155-002

05/07/2025

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

CA-00073155-005 WITHDRAWN

05/07/2025

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00073155-008 WITHDRAWN

05/07/2025

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00073156-001

05/07/2025

The Complainant commenced employment with the Respondent, an aquaculture company operating marine farming sites in Ireland, on 16 September 2022 in the role of Marine Site Manager at its Gerahies, West Cork site. His employment was governed by written terms and conditions dated 22 September 2022. Following the successful completion of his probationary period, his salary was confirmed at €44,610 per annum and increased over time, reaching €52,882.56 by January 2025.

In addition to his basic salary, the Complainant was eligible to participate in a bonus structure which comprised two elements: an annual performance bonus of up to 12% of salary and a “generation” or production bonus of up to 21% of salary, payable upon completion of a fish production cycle, subject to the achievement of defined targets. The Complainant contends that he consistently met performance expectations and was paid his annual bonus during his employment.

The Complainant’s role involved overall responsibility for the operation of the marine site, including staffing and production. His duties included the preparation of work rosters and the supervision of staff. He had responsibility also for implementing the Respondent’s safety policies.

The Complainant’s employment was terminated with effect from 15 April 2025 following a disciplinary process in which the Respondent concluded that he had engaged in gross misconduct arising from a safety incident at sea whereby it is claimed he discarded personal protection equipment and jumped in the sea.

Arising from the termination of his employment and matters preceding it, the Complainant brings three complaints before the Workplace Relations Commission.

Firstly, the Complainant contends that he was dismissed for having made protected disclosures within the meaning of the Protected Disclosures Act 2014. He submits that, from October 2024 onwards, he repeatedly raised concerns with management regarding chronic understaffing at the site and the failure to pay the agreed generation bonus. He maintains that these matters constituted disclosures of relevant wrongdoing, including risks to health and safety. He submits that his dismissal was wholly or mainly in retaliation for having made such disclosures.

The Respondent disputes this claim in its entirety. It maintains that no protected disclosure was made by the Complainant, whether formally or informally, and that there is no evidence to support such an assertion. The Respondent further submits that, even if such disclosures had been made, which is denied, there is no causal connection between any alleged disclosure and the decision to dismiss. It contends that the dismissal arose solely from the Complainant’s conduct in relation to a serious safety incident and the manner in which he subsequently failed to engage with procedures.

Secondly, the Complainant claims that his dismissal was unfair under the general provisions of the Unfair Dismissals Acts 1977 to 2015. He submits that the conduct relied upon by the Respondent did not constitute gross misconduct and that the sanction of dismissal was disproportionate, particularly in light of his previously unblemished record. He further contends that the disciplinary process was procedurally flawed, including the alleged reopening of a matter which had already been addressed and a failure to properly consider relevant evidence.

The Respondent rejects this contention and submits that the dismissal was both substantively and procedurally fair. It asserts that the Complainant, as site manager, engaged in conduct which posed a serious risk to his own safety and that of a subordinate employee, a boat skipper, in a safety-critical marine environment by discarding his personal protective equipment and jumping in the sea.   It further submits that the Complainant failed to report the incident in accordance with established safety procedures and refused to accept responsibility for his actions. The Respondent contends that this conduct amounted to gross misconduct within the meaning of its disciplinary policy and that dismissal fell within the range of reasonable responses open to an employer in the circumstances. It also maintains that the Complainant was afforded full fair procedures, including notice of the allegations, the opportunity to respond, and the right of appeal, but chose not to fully engage with the process.

Thirdly, the Complainant brings a complaint under the Payment of Wages Act 1991 in respect of the non-payment of the fish generation bonus for the 2023/2024 and 2024/2025 production cycles. He contends that the relevant performance targets were met and that the bonus constituted wages properly payable to him. He submits that the Respondent’s refusal to pay the bonus amounted to an unlawful deduction from wages. He submitted an accountant’s assessment that the sum outstanding is €6440.

The Respondent disputes that any such entitlement arose. It submits that the generation bonus was discretionary and contingent upon specific criteria, including the timing of the relevant fish generation cycle. It contends that the fish harvested in 2024 had been placed at sea prior to the introduction of the applicable bonus scheme and therefore did not qualify for payment. The Respondent further submits that no employee received the generation bonus in the relevant period and that the Complainant was treated no differently from other employees. Accordingly, it denies that there was any unlawful deduction within the meaning of the 1991 Act.

Complainant’s Case:

The Complainant outlined his employment history with the Respondent. He stated that he commenced employment in September 2022 and initially carried out general duties as a marine operative and assistant manager before being promoted to Marine Site Manager in December 2022. In that role, he assumed responsibility for a fish stock which he described as being in poor condition at the time he took over, stating that “there was a massive loss from the beginning” and that the fish were not good.

He gave evidence that he implemented a range of measures to improve the condition of the fish, including increased monitoring and treatment, and that these resulted in a significant improvement in performance. He stated that the biological feed conversion ratio achieved was approximately 1.06 and that this represented a strong outcome. He further stated that this generated a substantial financial benefit for the Respondent, estimating that the saving could be “€800,000… 1 million or more”. He stated that he received positive feedback from management in respect of this work.

The Complainant then addressed the issue of bonus payments. He explained that two forms of bonus existed, namely an annual performance bonus and a fish generation bonus. While he accepted that he received the annual bonus, he stated that the generation bonus was not paid. He stated that he and his team worked additional hours in the expectation that this bonus would be paid and that he had been informed that he would receive a “very good bonus”. He stated that this position later changed when management asserted that the scheme did not apply to the relevant fish stock. He maintained that this was inconsistent with what had previously been communicated.

The Complainant stated that staffing reduced over time from approximately seven or eight personnel to three, and at times to two. He stated that this reduction impacted operations and that working days were reduced from seven to five per week. He further stated that by January 2025 “we were only two staff… most of the time we were just two staff”. When asked whether this constituted a safe level of staffing, he responded “No”.

He stated that he raised concerns regarding staffing levels and requested additional personnel, particularly for weekend work, and that management were aware of staffing levels through timesheets and ongoing communications. He also referred to an incident in which a colleague was injured and stated that he reported the matter and recommended that additional personnel be provided in order to carry out tasks more safely.

The Complainant then gave a detailed account of the incident in early January 2025 which ultimately led to the disciplinary process. He stated that the incident arose during routine operations when a dinghy became detached because it was not tied up properly from the moored work boat and began to drift away. He explained that the conditions at the time were such that the dinghy could not be easily retrieved using the workboat and that the water in the area was relatively shallow. He described the situation as requiring immediate action in order to prevent the dinghy from being lost or damaged.

He stated that, in those circumstances, he made the decision to enter the water in order to retrieve the dinghy. He gave evidence that he removed his outer clothing and personal protective equipment before entering the water and swam towards the drifting vessel. He maintained that he was capable of doing so safely and that he was accustomed to working in marine conditions. He was a qualified diver and a very competent swimmer. He stated that, in his view, the situation did not present a serious risk to his safety.

He further stated that the skipper arrived shortly thereafter with the workboat and that the situation was brought under control. He rejected any suggestion that he had required assistance or had been rescued, maintaining that he had managed the situation himself and exited the water without difficulty. He also disputed that the incident involved any significant danger, maintaining that the conditions were manageable and that he remained in control throughout. The Complainant stated that his actions were taken in the context of the operational realities on site, including the reduced staffing levels he had described. He maintained that the absence of additional personnel limited the options available and that his decision to enter the water was made in order to resolve the situation efficiently.

He further stated that he did not consider that the incident required formal reporting. He maintained that there had been no injury, no loss, and no ongoing risk arising from the events and that, in those circumstances, he did not complete an incident report or escalate the matter through formal safety channels.

The Complainant gave evidence that the matter was first raised with him at a meeting on 29 January when he was asked about a rumour by Ms Cara McGhee that he had entered the water. He stated that he initially denied this but subsequently accepted that he had entered the water and provided an explanation of the circumstances. He stated that he indicated that it would not happen again and that he understood the matter to have been dealt with at that point.

He further gave evidence that the matter was subsequently reopened and escalated into a disciplinary process. He accepted that he did not participate in later stages of the investigation and disciplinary process but maintained that he had already provided an account at the earlier meeting and that he did engage at the appeal stage.

The Complainant gave evidence that he had raised concerns regarding staffing and safety over a period of time and contended that these constituted protected disclosures. He maintained that these matters were communicated to management in the course of his employment and formed part of the context in which the events leading to his dismissal occurred.

Cross-Examination.

In cross-examination, the Respondent’s representative challenged the Complainant’s entitlement to the claimed bonus payment, in particular the alleged “generational bonus.” It was put to the Complainant that this element of the bonus scheme applied only to fish that completed a full production cycle from deployment at sea to harvest, and that where fish were under an employee’s control for only part of that cycle, any entitlement would be limited or calculated on a pro rata basis. The Complainant’s assertion that he was entitled to a generational bonus in respect of fish deployed prior to the introduction of the scheme in January 2023 was also challenged, with the suggestion that the relevant scheme did not apply to those fish and may only have become operative in respect of later production cycles. The Complainant indicated that he was not aware of the specific timelines advanced.

The Respondent’s representative further examined the basis for the Complainant’s monetary claim, which had been calculated by an accountant at approximately €6,440. It was put to the Complainant that this calculation relied on assumptions and performance metrics that were not accepted by the Respondent and that the report did not identify any specific contractual targets that had been achieved so as to trigger entitlement to the payment. The Complainant confirmed that he had instructed the accountant and accepted the figure produced.

It was also put to the Complainant that he had, in fact, received an annual or performance-related bonus and that the generational bonus constituted a separate scheme with distinct qualifying criteria, which the Respondent maintained had not been satisfied in his case. The Complainant was further questioned on the absence of any documentary evidence supporting his claim, including the lack of written targets, communications, or assurances from management confirming his entitlement. He accepted that he did not have such documentation but stated that his previous manager Mr A had always the calculation method was always correct.

The Complainant was questioned regarding his knowledge of the relevant production outcomes, particularly for the period during which he was suspended. He accepted that he did not have full information as to what had occurred during that time and could not confirm whether the conditions necessary to trigger any bonus entitlement had been met.

The Complainant was asked about the manner in which he had raised concerns regarding staffing levels and whether there was any contemporaneous documentary record of such complaints. It was put to him that there were no emails or written reports evidencing repeated complaints to management. It was suggested that “there was no evidence… [he] never gave evidence about contacting [management] out of hours”. It was further put to him that, at regular management meetings where health and safety was a standing agenda item, there was no record of him raising concerns and that notes of such meetings recorded no health and safety issues from his site. It was also suggested that he had not submitted reports through the Respondent’s safety reporting systems.

The Complainant was questioned regarding the absence of any incident report following the events of 6 January 2025. It was put to him that he had not reported the incident in accordance with established procedures and that, as site manager, he bore responsibility for ensuring that incidents were documented. He maintained his position that the incident did not warrant formal reporting. He accepted that he had safety training on the day prior to the incident, 5 January, albeit online.

In relation to the incident itself, it was put to the Complainant that his actions constituted a serious breach of safety rules, including entering the water without appropriate personal protective equipment. It was suggested that he had placed both himself and a colleague at risk. The Complainant maintained that the circumstances did not present a serious danger and that his actions were justified in the context of the situation as he perceived it.

He was further questioned regarding the level of detail he had provided to management about the incident. It was put to him that, apart from acknowledging that he had entered the water, no detailed explanation had been provided during the investigation process. It was suggested that management had “never been told any of that” in terms of the full circumstances of the event.

The Complainant was also questioned regarding his decision not to participate in the investigation and disciplinary process. It was put to him that he had refused to engage with the process and had declined to provide a written statement when requested. The Respondent’s position, as put during the hearing, was that he “refused point blank to… participate”. The Complainant maintained that he had already provided an account at an earlier stage and that his subsequent non-participation was based on concerns regarding the fairness of the process.

 It was put to the Complainant that there was no documentary record of any protective disclosures prior to the commencement of the disciplinary process. It was further put that the first explicit reference to whistleblowing arose only after the process had begun, when he stated that he had acted “as whistleblower… to highlight serious issues”. It was suggested that, prior to this, he had not invoked any formal reporting mechanisms or raised concerns in a manner consistent with protected disclosures.

Complainant’s Submissions

On behalf of the Complainant, it was submitted, consistent with both the written legal submissions and oral closing argument, that the case comprised three interlinked claims: unlawful deduction of wages, unfair dismissal arising from protected disclosures, and, in the alternative, dismissal disproportionate to the alleged misconduct.

In relation to the bonus claim, it was argued that the production or “generation” bonus formed part of the Complainant’s contractual remuneration and fell squarely within the definition of “wages” under section 1 of the Payment of Wages Act 1991. Reliance was placed on the structure of the bonus scheme and the evidence that targets had been met. The Complainant emphasised that the Gerahies site had achieved exceptional production results, including a biological feed conversion ratio described internally as “not often I have seen these good results”. It was contended that, once earned, the bonus crystallised as a contractual entitlement and could not be withheld retrospectively.

In support of that proposition, reliance was placed on Cleary & Others v B&Q Ireland Ltd [2016] IEHC 119, where McDermott J. held that an employer could not retrospectively withhold a bonus earned during a relevant period where employees had a legitimate expectation of payment. It was submitted that the discretion relied upon by the Respondent could only operate prospectively and not to defeat accrued entitlements. Further reliance was placed on Balans v Tesco Ireland Ltd (Labour Court, PWD2114/2021) for the proposition that an employer must objectively justify any departure from an agreed remuneration structure.

Turning to the dismissal, the Complainant’s central submission was that he had made protected disclosures concerning understaffing and safety risks at the site, and that his dismissal was causally connected to those disclosures. It was argued that repeated complaints regarding understaffing constituted disclosures of “relevant wrongdoing” within the meaning of section 5 of the Protected Disclosures Act 2014, particularly where such understaffing gave rise to safety risks under maritime legislation.

Counsel relied on Baranya v Rosderra Irish Meats Group Ltd [2021] IESC 77, where the Supreme Court confirmed that complaints concerning one’s own health and safety can constitute protected disclosures. It was emphasised that, pursuant to section 5(8) of the 2014 Act, there is a presumption that a disclosure is protected unless the employer proves otherwise. It was submitted that the Respondent had failed to discharge that burden.

In the alternative, it was submitted that, even if the dismissal was not found to be connected to protected disclosures, it was substantively and procedurally unfair. Counsel contended that the alleged misconduct – entering the water to retrieve the dinghy – did not meet the threshold for gross misconduct. Reliance was placed on the long-established authority of Lennon v Bredin (EAT, M160/1978), which held that summary dismissal is reserved for conduct so serious that “no reasonable employer could be expected to tolerate the continuance of the relationship for a minute longer.”

It was further argued that the Respondent had failed to apply the “band of reasonable responses” test, as articulated in Bank of Ireland v Reilly [2015] IEHC 241 and derived from British Leyland UK Ltd v Swift [1981] IRLR 91. The Complainant submitted that a reasonable employer would have considered lesser sanctions, particularly in light of his unblemished record.

A significant emphasis was placed on procedural fairness. It was contended that the Respondent had engaged in a form of “double jeopardy” by first addressing the incident at the meeting of 30 January and subsequently reopening the matter. Reliance was placed on Christou v Haringey London Borough Council [2014] QB 131 (EWCA Civ), where it was held that reopening disciplinary proceedings may amount to an abuse of process.

Counsel also relied on An Bord Bainistíochta, Gaelscoil Moshíológ v Labour Court [2024] IESC 38 to emphasise that the statutory test under the Unfair Dismissals Act 1977 requires an assessment of the overall reasonableness of the employer’s conduct and that the burden rests on the employer to justify dismissal.

In conclusion, it was submitted that the dismissal was “disproportionate and unwarranted in all the circumstances” and that the Complainant was entitled to compensation for unfair dismissal, together with payment of the outstanding bonuses.

Evidence of Ms Clara McGhee (Seawater Operations Manager)

The witness outlined her role as Seawater Operations Manager and confirmed that she was the Complainant’s line manager at the relevant time. She stated that her responsibilities included oversight of various marine sites in the South West, including Gerahies. This involved supervision of site managers, and ensuring compliance with operational and health and safety requirements.

She gave evidence regarding the management structure and the operation of regular meetings. She stated that weekly management meetings were held and that health and safety was a standing agenda item at those meetings. She described the process whereby each site manager was required to report on “accidents, incidents, hazards, near misses” and any operational concerns. She stated that she had reviewed her notes and records of these meetings and that there was no record of the Complainant raising concerns regarding staffing levels or health and safety issues. She stated that, on certain occasions, her notes recorded that the Complainant “reported nothing at all” in respect of health and safety matters. The witness gave evidence that she maintained contemporaneous notes of meetings and reviewed those notes in preparation for the hearing. She stated that, having “crawled through my notes and my emails”, she could not identify any instance where the Complainant raised concerns about staffing levels or safety issues prior to the incident. The notes were exhibited. She stated that, apart from a single reference in early January, there was no record of such concerns being raised.

In relation to staffing levels, the witness stated that, in her view, there were sufficient staff available to carry out the required work. She indicated that, where shortages arose, personnel could be redeployed from other sites or external contractors could be utilised. She did not accept that staffing levels at the Complainant’s site rendered the work unsafe.

The witness then addressed the events of 6 January 2025. She stated that she became aware of a rumour on 30 January, from an administrative assistant, that the Complainant had entered the water during working hours earlier in the month. She stated that she raised this directly with the Complainant at a meeting on that date. She gave evidence that the Complainant initially denied the allegation but subsequently admitted that he had entered the water. She stated that he provided a limited explanation of the circumstances. The witness described her reaction to the information provided and stated that she regarded the matter as serious. She stated that, at the time, she instructed the Complainant not to discuss the matter further. She also gave evidence that she subsequently made inquiries, including speaking to the skipper, and that this led to the matter being escalated.

She stated that the incident had not been reported to her at the time it occurred and that she did not receive any incident report from the Complainant. When asked directly whether she had received an incident report, she replied “No”. She stated that, in her view, this was a breach of established safety procedures, particularly given the Complainant’s role as site manager.

The witness gave evidence that, following her inquiries, the matter was reported to senior management, and the Complainant was suspended pending investigation. She confirmed that she was involved in the early stages of the process, including arranging the initial meeting and documenting what had been reported to her. She described the process as one intended to be “fact-finding rather than disciplinary at that stage,” and stated that her role was to “establish, as far as possible, a clear sequence of events from the accounts provided.” The witness indicated that she met separately with Mr Gary Hurley, skipper on the day, and that she also reviewed contemporaneous records, including internal messages and any written notes. She said the Complainant refused to involve himself with the investigation process.

She also addressed correspondence received from the Complainant in February in which he referred to himself as a whistleblower. She stated that this was the first time she became aware of any suggestion that the Complainant considered himself to have made a protected disclosure. She stated that “it is” the first time she encountered such a claim. She indicated that she sought guidance from HR and did not consider the matters raise.

In relation to the bonus scheme, the witness gave evidence that it operated on a discretionary basis and was contingent on both individual and business performance. She stated that “the bonus was not a guaranteed entitlement but was assessed annually,” and that a number of factors were taken into account, including “overall company performance, departmental targets, and individual contribution.” She explained that there was no single fixed formula applied, describing the calculation as “a composite assessment rather than a strictly mathematical one.” She said the rules of the generational bonus were applied consistently throughout the Respondent’s sites in Ireland. The fundamental thing being that a recipient has to be there for the full cycle of growth of the fish, including harvest, which did not apply in this instance for the Complainant because he was not there for the full cycle to harvest of the batch of fish in question.

The witness further testified that employees were made aware that the scheme could vary from year to year, stating that “it was understood internally that bonuses could increase, decrease, or not be paid at all depending on circumstances.” She accepted that the complainant had previously received bonus payments but rejected the assertion that this created an expectation of continuity, stating that “past payments did not create a contractual entitlement to future bonuses.” She also indicated that communication around the scheme was general in nature, acknowledging that “while the existence of a bonus scheme was known, the precise calculation methodology was not formally documented in detail for staff.”

Cross-Examination

In cross-examination, the witness was questioned regarding her interactions with the Complainant and the extent to which he may have raised concerns outside formal structures.

She was asked whether the Complainant had contacted her outside of formal meetings, including by telephone, to raise concerns regarding staffing or safety. It was put to her that such communications may have taken place and that not all concerns would necessarily be recorded in meeting notes. The witness accepted that operational communications did occur but did not accept that the Complainant raised safety concerns in that manner.

It was put to the witness that the Complainant had given evidence that he raised concerns regularly from October onwards. She was asked to respond to that assertion. She rejected it, stating “that’s not true… I don’t really know how much more I can elaborate”. She maintained that her notes and records did not support the Complainant’s account.

The witness was further questioned regarding the adequacy of staffing levels. It was put to her that there were periods where only two personnel were available on site and that this created safety risks. She maintained that staffing levels were adequate and that, where necessary, additional resources could be sourced.

In relation to the incident of 6 January 2025, the witness was questioned regarding the level of detail provided by the Complainant at the meeting of 30 January. It was put to her that the Complainant had provided a full account at that stage. She maintained that the information provided was limited and that she did not receive a detailed explanation of the circumstances.

The issue of whether the matter had been concluded at the meeting of 30 January was also explored. It was put to the witness that the Complainant understood the matter to have been resolved at that point. She was asked whether she had indicated that no further action would be taken. The witness did not accept that the matter had been concluded and maintained that, upon further inquiry, it was appropriate to escalate the issue.

The witness was also questioned regarding the handling of the whistleblowing correspondence. It was put to her that the Complainant had expressly referred to himself as a whistleblower and that this should have triggered a formal process. She accepted that the Complainant had used that term but maintained that she did not consider the matter to fall within the definition of a protected disclosure.

The witness was questioned regarding the absence of documentary evidence of safety concerns. It was put to her that the absence of written records did not necessarily mean that concerns had not been raised. She maintained that, given the structures in place for reporting and documenting safety issues, the absence of such records was significant and that she had no recollection of the Complainant raising such concerns.

On the generational bonus scheme, the witness accepted that the absence of clear written criteria could give rise to uncertainty, stating that “it is fair to say that the scheme relied on managerial discretion to a significant extent.” Nonetheless, she maintained that the approach was applied consistently, asserting that “all employees were considered under the same general framework,” and that decisions were made “in line with the financial position of the business and management’s assessment of performance.”

Evidence of Gary Hurley, Skipper of the Workboat on 6 January 2025:

The witness outlined his role as skipper and explained that he was responsible for the safe operation of the vessel, including navigation and ensuring compliance with safety procedures. He stated that his duties included responding to emergencies and ensuring that appropriate protocols were followed in situations involving risk to personnel. He gave an account of his extensive experience in the fishing industry.

The witness gave detailed evidence in relation to the events of 6 January 2025. He stated that he and the Complainant were working on a workboat engaged in routine operations at the fish beds when a rigid inflatable boat (RIB) became detached and began to drift away. He described the conditions as challenging, noting that it was winter and that the sea was cold and exposed. He said there was a strong wind from the north west, coming across Bantry Bay. He said that he was in the wheel house and when he turned around, he saw that the Complainant  had  removed his personal protective equipment, including his lifejacket, stripped to his underwear  and had  entered the water in order to retrieve the RIB. The witness described this as a serious and unexpected action which was contrary to all safety procedures. He said he took out his mobile phone and recorded some footage of this to protect himself in any subsequent enquiry.  He said the Complainant had not given him any indication prior to this of what he was doing.   He emphasised that, in his experience and training, personnel were strictly prohibited from entering the water in such circumstances and that there were established methods for recovering equipment without placing individuals at risk.

He said that he saw the Complainant swimming towards the RIB but then he stopped and saw him bobbing in the water. He immediately then brought the workboat about and headed towards the Complainant. It was shallow water, and the boat struck a rock but did not hole it. He recovered the Complainant. He rejected any suggestion that the situation was routine or without risk, maintaining that it was a serious safety incident. He indicated that, in his view, the Complainant’s life was in danger, particularly given the conditions and the absence of protective equipment.

The witness described the situation as dangerous and stated that the Complainant’s actions created a risk not only to himself but also to the witness. He explained that, as skipper, he was left in a position where he had to manage the vessel alone while also responding to a “man overboard” type situation. He stated that this significantly increased the risk to both individuals.

The witness further stated that the incident was not reported to management at the time by the Complainant.  He indicated that, in accordance with procedures, such an incident should have been reported immediately. He stated that, as site manager, the Complainant bore responsibility for ensuring that incidents were documented and escalated.

The witness gave further evidence that when they were going home in the car afterwards, the Complainant implored upon him not to tell anyone about the incident. He also gave evidence that the Complainant double up with cramp pains in the car and the witness advised he should go to the hospital immediately. The Complainant refused to do so.  

In relation to staffing levels and operational practices, the witness stated that, in his experience, the work being undertaken could be performed safely with the personnel available. He did not accept that staffing levels rendered the operation unsafe or contributed to the incident.

Cross-Examination

It was put to the witness that there was a dispute as to how the RIB became detached and whether it had been properly secured prior to the incident. It was suggested that it was he who inadequately tied off the RIB and therefore responsibility for the circumstances leading to the incident did not lie solely with the Complainant and that there was “a conflict of evidence” between the witness and the Complainant in that regard. The witness accepted that he tied off the RIB but that knots can unravel in challenging sea conditions.

The witness was questioned regarding his use of his mobile phone during the incident. It was put to him that he recorded the events while the Complainant was in the water and that this raised questions as to whether his full attention was directed to managing the situation. He accepted that he had recorded a video and was asked whether this was consistent with his responsibilities as skipper in a potentially dangerous situation where his first action should be to put out an emergency alert, followed by recovery of the casualty. The issue of emergency procedures was explored in detail. It was put to the witness that, in circumstances where a person enters the water, standard safety practice requires the activation of a distress signal or equivalent emergency protocol. The witness accepted that such procedures exist but was questioned as to whether they had been followed on this occasion. He was asked specifically whether a distress signal had been raised when the Complainant entered the water and whether all appropriate emergency steps had been taken. He accepted that no distress signal was sent.

He was also questioned as to whether the video recording had been shared with other individuals. It was put to him that the footage had been circulated more widely than was appropriate. The witness said he shared it only with the administrative assistant.

The witness was further questioned regarding his assessment of the level of risk involved. It was put to him that the Complainant considered the situation to be manageable and not dangerous, particularly given the water conditions and his own ability. The witness rejected that characterisation and maintained that the situation was inherently dangerous, particularly given the absence of a lifejacket and the wintry sea conditions.

The issue of staffing levels was also put to the witness. It was suggested that reduced staffing may have contributed to the circumstances in which the incident occurred and that the Complainant had raised concerns in that regard. The witness did not accept that staffing levels were unsafe and maintained that sufficient personnel were available to carry out the work.

The witness was also asked whether the Complainant had raised concerns with him directly regarding safety or staffing. It was put that there was no record of such communications, whether by telephone or otherwise, and the witness indicated that he had not received such complaints.

Finally, the witness was questioned regarding the reporting of the incident. It was put to him that the Complainant had provided an account at a later meeting and that there was a dispute as to whether this constituted sufficient reporting. The witness accepted that the incident had not been reported at the time in accordance with established procedures.

Evidence of Ms Judy Coyle, Grievance Investigator.

Ms Judy Coyle gave evidence on behalf of the Respondent in relation to her role in investigating the Complainant’s grievance. She said she was a plant manager In Donegal with the Respondent where she oversaw an operation employing 50 staff. The witness gave evidence by remote link. 

The witness outlined her role within the organisation and confirmed that she was appointed to investigate the grievance raised by the Complainant in March 2025. She stated that her task was to consider the issues raised by the Complainant and to make findings in accordance with the Respondent’s grievance procedures.

She gave evidence that she received the Complainant’s written grievance, which set out a range of complaints including issues concerning staffing levels, the handling of the disciplinary process, and matters which the Complainant characterised as falling within the Protected Disclosures Act 2014. She accepted that the grievance documentation contained an express reference to the “Protected Disclosures Act”.

The witness stated that she carried out her investigation by reviewing the documentation provided, engaging with relevant personnel, and considering the matters raised by the Complainant. She confirmed that she communicated with Ms McGhee during the course of her investigation, stating that she had been in contact with her “by email and via Teams on two or three occasions” .

In relation to the manner in which she approached the grievance, the witness stated that she treated it as a grievance under the company’s internal procedures rather than as a protected disclosure. She accepted that the material referencing protected disclosures was before her but stated that she “didn’t use the parameter” of a protected disclosure in conducting her investigation. She explained that she considered the issues raised to fall within the grievance framework rather than requiring a separate process under the protected disclosures policy.

The witness gave evidence that she ultimately concluded her investigation and issued a decision rejecting the Complainant’s grievance. She confirmed that this decision issued on the same day as correspondence advancing the disciplinary process.

She was asked about the relationship between the grievance process and the disciplinary process. She stated that, in her view, the two processes were separate and addressed different issues. She indicated that they were “doing separate things” and could proceed in parallel.

Cross-Examination

In cross-examination, It was put to the witness that the Complainant had expressly invoked the Protected Disclosures Act in his grievance and that this should have prompted her to assess the complaint within that statutory framework. She accepted that the legislation was referenced but maintained that she did not consider it appropriate to treat the matter as a protected disclosure. It was put to her that this approach was flawed and that the statutory test required only that the employee have a reasonable belief that wrongdoing had occurred. The witness maintained that she had considered the content of the grievance and did not consider that it met the threshold for a protected disclosure.

The witness was also challenged on the sequencing of the grievance and disciplinary processes. It was put to her that the grievance decision issued at a time when the disciplinary process was ongoing and that the Complainant had not yet exercised his right of appeal in respect of the grievance. It was suggested that it would have been appropriate to pause the disciplinary process pending the outcome of any grievance appeal. The witness maintained that the processes were distinct and that there was no requirement to defer one pending the other.

Further, it was put to the witness that there was an inconsistency between her approach and that of other managers within the organisation. In particular, it was suggested that there had been an understanding at a more senior level that dismissal would not be finalised until the grievance process had concluded. This was put to the witness as creating a divergence in approach. The witness maintained her position that the processes were separate and that her role was confined to determining the grievance.

The issue of fairness in the overall process was also explored. It was put to the witness that the Complainant ultimately lost his employment while a grievance appeal remained open to him. While this was put as a matter of procedural concern, the witness maintained that the existence of an appeal mechanism did not preclude the continuation of the disciplinary process.

The witness was further questioned on the legal framework applicable to protected disclosures. It was put to her that there is a presumption in favour of protection once relevant information is disclosed and that it is for the employer to rebut that presumption. This was articulated in the course of submissions as “a presumption… for the employer to rebut”. The witness did not accept that such a presumption arose on the facts of the case as she understood them.

Finally, the witness was questioned regarding the scope of her investigation and whether all relevant matters had been considered. It was suggested that her decision not to treat the complaint as a protected disclosure affected the manner in which the investigation was conducted. The witness maintained that she had considered the grievance in accordance with the company’s procedures and that her findings reflected her assessment of the issues raised.

Evidence of Mr Liam Doherty, Disciplinary Decision Maker.

Mr Liam Doherty gave evidence on behalf of the Respondent as the manager who conducted the disciplinary process and made the decision to dismiss the Complainant. He said he was an Operations Manager with the Respondent, and he had no prior dealings with the Complainant. He outlined his extensive experience in the marine industry including being a qualified commercial diver.

The witness outlined his role in the disciplinary process and confirmed that he was appointed to conduct the disciplinary hearing arising from the incident of 6 January 2025. He stated that his function was to consider the evidence available, to assess whether the allegations were established, and to determine the appropriate sanction in accordance with the Respondent’s disciplinary procedures.

He gave evidence that he reviewed a range of materials in advance of the disciplinary hearing, including witness accounts and video footage of the incident, which was screened during the hearing.  He described the video evidence as particularly significant, stating that it “really shows the severity of the whole incident”. He emphasised that the footage demonstrated the Complainant in the water without appropriate safety equipment and that this was a fundamental concern in a marine environment.

The witness stated that, in his view, the Complainant’s conduct constituted a serious breach of safety procedures. He explained that adherence to safety protocols was essential in the Respondent’s operations and that there were clear expectations that personnel would not enter the water without appropriate safeguards. He stated that “the basic thing is that you do not take off your life jackets when you go to sea” and that the Complainant’s actions were inconsistent with this requirement.

He gave evidence that, notwithstanding the absence of a detailed written statement, he considered that there was sufficient evidence to proceed. He stated that he had “enough evidence that determined it needed to be heard on a disciplinary panel” and that the video evidence alone was highly probative. He confirmed that the Complainant did not provide a formal written account of the incident and that “there was no supplementary… detailed statement about what happened”.

The witness also addressed the Complainant’s engagement with the disciplinary process. He stated that the Complainant was invited to attend meetings but did not attend on a number of occasions. He recalled that one meeting was arranged but that the Complainant indicated “three hours before that he wasn’t coming,” which he described as “a bit frustrating”. He stated that the Complainant did not provide a written submission in advance of the hearing.

He further stated that, where the Complainant raised concerns regarding the disciplinary process itself, he did not investigate those matters as part of the disciplinary hearing. He indicated that he advised the Complainant that if he was dissatisfied with the process, the appropriate avenue was to raise those matters on appeal. In that regard, he stated that “if you’re not happy with the disciplinary process… the disciplinary policy provides for an appeal mechanism”.

Having considered the evidence, the witness concluded that the Complainant’s conduct amounted to gross misconduct and that dismissal was the appropriate sanction. He stated that the seriousness of the safety breach, particularly in a marine environment, justified that outcome.

Cross-Examination

In cross-examination, the witness was questioned in detail regarding both the procedural aspects of the disciplinary process and the reasoning underlying his decision.

A central issue concerned his treatment of concerns raised by the Complainant regarding the disciplinary process. It was put to him that the Complainant had raised a number of procedural objections which he had accepted he “didn’t investigate.” It was suggested that, in circumstances where such concerns were raised, it was incumbent upon him to consider them as part of the disciplinary process rather than deferring them to an appeal stage. The witness maintained that his approach was consistent with the procedure and that such matters were appropriately addressed on appeal.

The witness was also questioned regarding the sequencing of the grievance and disciplinary processes. It was put to him that the disciplinary process proceeded to conclusion while a grievance appeal remained open and that this was procedurally unsatisfactory. It was suggested that “there is something unsatisfactory about the disciplinary hearing taking place while an appeal… of grievance is heard” and that the appropriate course would have been “to suspend the investigation pending the outcome of the grievance appeal”. The witness accepted that the processes ran in parallel but did not identify any specific urgency requiring the disciplinary process to proceed in that manner.

He was further questioned regarding the evidence he relied upon in reaching his decision. It was put to him that certain witness statements favourable to the Complainant were not included in the materials underpinning his findings. These statements were said to describe the Complainant as “a highly competent marine operative and a good manager of people and excellent colleague”. It was suggested that these statements had not been adequately considered and that the individuals concerned had not been interviewed. The witness was asked to explain how this aligned with a fair and comprehensive assessment of the evidence.

The witness was also questioned regarding the absence of a detailed account from the Complainant. It was put to him that, in circumstances where the Complainant had provided an explanation at an earlier stage, it was not appropriate to proceed without seeking further clarification. The witness maintained that the available evidence, including the video footage, was sufficient to allow him to reach a conclusion.

The issue of proportionality was also explored. It was put to the witness that the Complainant had an unblemished disciplinary record and that lesser sanctions were available. It was suggested that there was no evidence that alternatives to dismissal were meaningfully considered. The witness maintained that, given the seriousness of the safety breach, dismissal was justified. He accepted that he did not consider alternative sanctions under the circumstances.

The witness was also asked about the Respondent’s response to the incident more broadly, including whether there had been any review of safety procedures. It was put to him that, if the incident was as serious as described, it would be expected that a policy review would follow. The witness indicated that policies were reviewed periodically but did not identify any specific review arising directly from the incident.

 It was put to the witness that his conclusion was based on a strict interpretation of safety rules and that he considered the breach to be fundamental. The witness maintained that, in a marine environment, adherence to such rules is essential and that a breach of this nature undermined trust and confidence to such an extent that dismissal was warranted.

Evidence of Ms Catherine McManus (Appeal Officer).

The witness stated she was national Operations Director for the Respondent since June 2022 and had 38 years’ experience in the business. She outlined her role in the organisation and confirmed that she was appointed to hear the Complainant’s appeal following the decision to dismiss. She stated that her function was to review the disciplinary outcome, consider the grounds of appeal advanced, and determine whether the decision should be upheld or overturned.

She gave evidence that she convened an appeal hearing at which the Complainant had the opportunity to present his case. She confirmed that the Complainant raised a number of issues on appeal in writing, including concerns regarding the manner in which the disciplinary process had been conducted and matters previously raised in his grievance. She acknowledged that one of the grounds of appeal expressly referred to “the issues raised in my letter of grievance… concerned the manner in which the disciplinary investigation was being conducted”.

The witness was asked about the documentation she reviewed in advance of the appeal hearing. She stated that she had not read any document before the hearing because she wanted to come to the appeal process with a “fresh pair of eyes”. She stated that she did not read the grievance letter “until after the grievance process had been concluded”.

She was also asked about additional materials, including statements from colleagues of the Complainant which were said to be favourable to him. The witness confirmed that she had not reviewed those statements, stating “No, I didn’t”. She accepted that these materials were not considered by her in advance of, or during, the appeal process.

In relation to the interaction between the grievance and disciplinary processes, the witness stated that, in her view, it was appropriate that the grievance process should be concluded before a final determination was made in respect of dismissal. It was put to her that her own position, as reflected in documentation, was that “the outcome of the appeal to dismissal has not been decided until the grievance process has been concluded”. She accepted that this reflected her understanding of how the processes should operate.

The witness further confirmed that she did not have direct involvement in the earlier stages of the grievance process and could not comment on decisions taken by others in that regard. When asked about the continuation of the disciplinary process while a grievance appeal remained open, she stated: “I can’t speak for Mr. Doherty on this” .

She also gave evidence in relation to the Complainant’s employment history, confirming that there had been no prior disciplinary issues and that, up to the incident in question, “we never had any incident or issue with [him] up to that point” . she said that despite requesting numerous times of the Complainant to give his version of events on 6 January, the Complainant refused to do so.

Cross-Examination

It was put to the witness that the grievance formed part of the grounds of appeal and that her failure to consider it in advance limited her ability to properly assess the Complainant’s case. The witness accepted that she had not reviewed that document prior to the hearing and that she only read it at a later stage.

The witness was also challenged in relation to her failure to consider witness statements from colleagues which were said to be favourable to the Complainant. It was put to her that these statements described him in positive terms, including as a competent manager and colleague, and that they were relevant to the assessment of his conduct and relationships with staff. She confirmed that she had not reviewed those statements and that they did not form part of her decision-making process.

Counsel further explored the sequencing of the grievance and disciplinary processes. It was put to the witness that the disciplinary process had proceeded to dismissal while a grievance appeal remained open and that this was inconsistent with her own view that the grievance process should be concluded first. The witness accepted that her understanding was that the grievance process should be finalised before a decision on dismissal was made but maintained that she could not comment on the actions of other managers.

The issue of the adequacy of the appeal process was also examined. It was put to the witness that an appeal requires a full and independent review of all relevant evidence and that her failure to consider certain materials, including grievance documentation and witness statements, undermined the robustness of the process. While she accepted that those materials had not been reviewed, she maintained that she considered the information before her and reached her decision accordingly.

The witness was also questioned regarding the Complainant’s employment record and whether this was taken into account. She confirmed that he had no prior disciplinary history and that this was known to her.

It was put to the witness that the combination of not reviewing key documents and the overlap between grievance and disciplinary processes gave rise to procedural deficiencies. The witness maintained that she carried out her role in accordance with her understanding of the procedures and that her decision to uphold the dismissal was based on the seriousness of the incident and the information available to her at the time.

Respondent Argument.

On behalf of the Respondent, it was submitted that the dismissal arose solely and exclusively from the Complainant’s conduct on 6 January 2025 and that there was no causal connection whatsoever between the dismissal and any alleged protected disclosure.

The Respondent characterised the incident as a serious breach of safety procedures in a high-risk marine environment. It was emphasised that the Complainant, as site manager, held ultimate responsibility for health and safety and had received extensive training, including specific training on safety procedures the day before the incident. It was submitted that his actions in entering the water without protective equipment and leaving a subordinate to manage the vessel created a situation of extreme risk, potentially exposing both individuals to fatal danger.

It was further submitted that the Complainant failed to report the incident in accordance with established safety procedures, despite clear obligations to do so. The Respondent argued that this failure, coupled with his refusal to accept responsibility, fundamentally undermined trust and confidence.

In addressing the legal test for unfair dismissal, the Respondent relied on section 6(4)(b) of the Unfair Dismissals Act 1977, which provides that dismissal may be justified where it results from the conduct of the employee. It was submitted that the conduct in question constituted gross misconduct within the meaning of the disciplinary policy, specifically “an act that endangers the safety of others”.

The Respondent relied on the decision in Looney & Co Ltd v Looney (UD 843/1984), which establishes that the role of the adjudicator is not to substitute their own view but to assess whether the employer’s decision fell within the range of reasonable responses open to a reasonable employer. It was submitted that, given the seriousness of the safety breach and the Complainant’s refusal to engage with the process, dismissal was the only reasonable outcome.

Further reliance was placed on Knox Hotel & Resort Ltd v O’Connor (UD 27/2004), where dismissal was upheld on the basis that the employee’s actions destroyed the trust and confidence necessary for the continuation of the employment relationship.

In response to the protected disclosure claim, the Respondent submitted that no evidence had been adduced of any such disclosure. It was emphasised that the Complainant had multiple opportunities to raise safety concerns through formal channels and had failed to do so. It was argued that the alleged disclosures were vague, unsupported, and raised only after the disciplinary process had commenced. The Respondent maintained that the dismissal predated any alleged disclosure and was wholly unrelated to it.

In respect of the Payment of Wages claim, the Respondent contended that the generation bonus was discretionary and contingent upon specific criteria, which had not been met. It was submitted that the fish in question had been placed at sea prior to the introduction of the relevant scheme and that no employee had received the bonus in the relevant period. Reliance was placed on Lichters & Hass v Depfa Bank plc [2012] IEHC 10 and Cotter v Bonus Scientific Cork Ltd (Labour Court, PWD1919), both of which emphasise the high threshold required to challenge the exercise of employer discretion in bonus schemes.

Finally, the Respondent submitted that the disciplinary process was procedurally fair and complied with the requirements of natural justice and the Code of Practice on Grievance and Disciplinary Procedures (S.I. No. 146/2000). It was emphasised that the Complainant had been afforded multiple opportunities to participate, to respond to allegations, and to appeal the outcome, but had repeatedly refused to engage.

In conclusion, the Respondent submitted that the dismissal was both substantively and procedurally fair, that no protected disclosure had been made, and that the bonus claim was unfounded.  

Having reviewed all the evidence, submissions, documentation and legal authorities before me, I approach this in a certain sequence. I must first determine, as a matter of fact and law, whether the Complainant made 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 those disclosures. I must assess also 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, where the Complainant puts an emphasis on, what he claims, was the disproportionate sanction of dismissal.   I must then examine whether the generational bonus was properly payable to the Complainant under the Payment of Wages Act 1991 (POWA).

CA-00073155-001 Unfair Dismissal – Protected Disclosure:

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,

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

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

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

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

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

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

(h) that a breach has occurred, is occurring or is likely to occur, or

(i) that information tending to show any matter falling within any of the preceding paragraphs has been, is being or is likely to be concealed or destroyed or an attempt has been, is being or is likely to be made to conceal or destroy such information.

…(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.

Having regard to section 5 of the Protected Disclosures Act 2014, I must first be satisfied that there was, in fact, a “disclosure of relevant information” made by the Complainant in a manner contemplated by the Act. While section 5(8) provides that there is a presumption that a disclosure is a protected disclosure, that presumption is rebuttable on the balance of probabilities where the evidence does not establish that any disclosure was made.

In the present case, I am not satisfied that the Complainant made any disclosure of information, whether protected or otherwise, within the meaning of the Act. The evidence before me does not demonstrate that the Complainant communicated any information tending to show a relevant wrongdoing, as required by section 5(3((d) regarding health and safety concerns. In particular, there was no evidence of any written communication such as emails, reports, or messages in which concerns were raised. Nor was there persuasive evidence of any oral communication amounting to a disclosure within the workplace structures. The documentary evidence is of particular significance. The Complainant signed off on staff rosters during the relevant period, and those documents do not indicate any objection or concern regarding staffing levels or associated health and safety issues. In addition, the exhibited notes of meetings produced by McGhee, which would reasonably be expected to record any such concerns if raised, contain no reference to the Complainant having raised issues regarding staffing levels or any alleged wrongdoing. In circumstances where such forums existed for the discussion of operational matters, the absence of any recorded concern is notable.

Furthermore, the timing of the Complainant’s assertion that he had made protected disclosures undermines his position. The evidence indicates that the Complainant only asserted that he had made disclosures after the commencement of the disciplinary process. Prior to that point, there is no contemporaneous evidence that he had characterised any communication as raising concerns of wrongdoing, nor that he had, in fact, made any such communication. This significantly weakens the credibility of the claim that a protected disclosure had been made.

Even if I were to accept that the Complainant held concerns regarding staffing levels, the Act requires more than the mere existence of a concern. It requires the communication of information which, in the reasonable belief of the worker, tends to show a relevant wrongdoing. On the evidence before me, I find that no such communication occurred. The Complainant’s case amounts, at its height, to an assertion after the fact rather than evidence of an actual disclosure made at the relevant time.

Insofar as the Complainant contends that his raising of issues regarding the bonus scheme constitutes a protected disclosure, I have considered this aspect of the evidence by reference to section 5(5A) of the Protected Disclosures Act 2014. That subsection expressly provides that a matter concerning “interpersonal grievances exclusively affecting a reporting person” or a complaint which concerns the worker exclusively is not to be regarded as a relevant wrongdoing for the purposes of the Act.

On the evidence before me, I am satisfied that the Complainant did raise concerns with the witness, Ms McGhee, in relation to the operation of the bonus scheme and, in particular, his dissatisfaction with the manner in which it applied to him. I accept that these concerns were genuinely held and were communicated in the course of his employment. However, the substance of those concerns was directed at his own remuneration and entitlement, rather than at any broader issue capable of constituting a “relevant wrongdoing” within the meaning of section 5(3).

The Complainant did not identify, either at the time or in the course of this hearing, any matter arising from the bonus scheme which could reasonably be said to involve a breach of a legal obligation, an endangerment to health and safety, or any of the other categories of wrongdoing set out in section 5(3). Rather, his complaint was that the bonus was not calculated or awarded in a manner he considered fair. This is, in essence, a dispute concerning terms and conditions of employment and individual financial benefit.

While I accept that the Complainant did raise issues regarding the bonus with the witness, I find that those matters constitute a personal employment grievance and do not amount to the disclosure of relevant information. They therefore cannot be classified as a protected disclosure within the meaning of section 5 of the Act.

 I am satisfied that the Respondent has rebutted the presumption in section 5(8) on the balance of probabilities. I find, as a matter of fact, that the Complainant did not make a protected disclosure within the meaning of section 5 of the 2014 Act. In the absence of any such disclosure, the protections of the Act do not arise. Therefore, I find the Complainant was not dismissed for making a protected disclosure.

CA-00073155-002 – Unfair Dismissal General Provisions.

Under s.6 of the 1977 Act, the dismissal is presumed unfair unless the Respondent shows it resulted wholly or mainly from a permissible ground and that fair procedures were observed. The reasonableness or otherwise of an employer in conducting a dismissal is addressed under Section6(7) of the Act 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."

In O’Riordan v Great Southern Hotels UD1469/2003, the Employment Appeals Tribunal has provided a set of guiding principles that an Adjudication Officer must follow when determining whether the respondent reasonably concluded that the complainant was guilty of an Act of gross misconduct:

“In cases of gross misconduct, the function of the Tribunal is not to determine the innocence or guilt of the person accused of wrongdoing. The test for the Tribunal in such cases is whether the respondent had a genuine belief based on reasonable grounds arising from a fair investigation that the employee was guilty of the alleged wrongdoing”.

The High Court has further echoed and reinforced this line of reasoning in Governor and Company of the Bank of Ireland v James Reilly [2015] IEHC 241, in which 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 accusation  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. 

In considering the complaint under the Unfair Dismissals Acts, I have had regard to both the procedural fairness of the process adopted by the Respondent and the proportionality of the sanction imposed. In assessing proportionality, I deemed it was necessary to gather extensive evidence of what transpired on 6 January 2025.

On the question of procedure, I am satisfied on the evidence that the Respondent conducted a process which was in line with the requirements of fair procedures and natural justice. The Complainant was notified of the allegations against him and invited to participate in an investigation. He was afforded an opportunity to respond at both investigation and disciplinary stages. The evidence demonstrates that the Respondent attempted to engage with the Complainant at each stage and provided him with opportunities to put forward his account of the incident of 6 January. However, the Complainant did not meaningfully engage with these procedures. He did not participate in the investigation process, nor did he avail of the opportunity to provide his version of events at the disciplinary stage. While he did attend at the appeal stage, he declined to give any substantive account of what had occurred on 6 January. In those circumstances, it is difficult to reconcile the Complainant’s assertion of procedural unfairness with his own failure to engage with the very processes designed to afford him an opportunity to be heard. The Respondent cannot be faulted for a lack of fair procedures where the Complainant chose not to avail of them.

I am satisfied that the procedures themselves were fair There was a clear separation between the investigative, disciplinary, and appeal stages. The Complainant was informed of the nature of the allegations, the potential consequences, and was given opportunities to respond. An appeal was provided and conducted. There is no evidence of bias or predetermination. In all of the circumstances, I find that the Respondent acted reasonably in the manner in which it conducted the process.

Turning to the substantive decision to dismiss, I am satisfied that the Respondent had reasonable grounds for concluding that the Complainant had engaged in serious misconduct. The evidence establishes that the Complainant, in his capacity as General Manager, discarded both a lifejacket and a survival suit, equipment which was critical to safety, and jumped into the sea in very challenging, wintry survival conditions. Whilst the Complainant had the noble intention of retrieving the RIB safely, I find from the evidence that assistance could have been called for to get the crew ashore, with the inconvenience only of having to spend a longer period on board the workboat.  In attempting to swim towards the RIB, I am satisfied that he conclusion of the Respondent that he placed both himself and another employee at risk, was reasonable one. This conduct represents a serious breach of safety protocols. The gravity of this is heightened by the fact that the Complainant had undertaken a safety course the previous day and was therefore fully aware of the importance of such equipment and the risks associated with its misuse or disposal. In addition, the Complainant failed to report the incident as required. This failure is a significant factor. The Respondent was entitled to expect that any such safety incident would be promptly reported, particularly by an individual in a senior management position. The failure to do so undermined trust and confidence and prevented the Respondent from addressing the issue in a timely and appropriate manner.

While not determinative in itself, the Complainant’s lack of engagement with the investigation and disciplinary process is an aggravating factor. His refusal to provide any explanation for his actions deprived the Respondent of the opportunity to consider mitigating circumstances and left it with little alternative but to make its decision based on the evidence available. This absence of engagement also undermined the employment relationship.

Having regard to all of the circumstances, including the seriousness of the misconduct, the safety implications, the Complainant’s seniority, his recent safety training, and his failure to report the incident, I am satisfied that the decision to dismiss fell within the range of reasonable responses open to the Respondent. The sanction was proportionate to the misconduct identified.

 I find that the dismissal was not unfair within the meaning of the Unfair Dismissals Acts 1977-2015.

CA-00073156-001 Payment of Wages Complaint – Bonus Scheme.

The Applicable Law: The Payment of Wages Act 1991 provides: -

S 5. (1) An employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless-

(a)    The deduction (or payment) is required or authorised to be made by virtue of any statute, or any instrument made under any statute,

(b)     The deduction (or payment) is required or authorised to be made by virtue of a term of the employee’s contract of employment included in the contract before, and in force at the time of, the deduction or payment, or

(c)     In the case of a deduction, the employee has given his prior consent in writing to it.

It is well established that the payment of a bonus falls under the definition of wages as provided for under the Act. There was no dispute that the Respondent operated a bonus scheme comprising an annual bonus and a generational bonus. While the annual bonus was paid, disagreement arose regarding the Complainant's entitlement to the generational element. The Complainant maintained that he had achieved two of the three relevant performance targets, namely harvest performance and biological feed conversion ratio, entitling him to payment of 14% of his salary. The Respondent disagreed and contended that no further payment was due.

Having reviewed the evidence, I am satisfied that the Complainant achieved the harvest and feed conversion targets. I was not directed to any provision of the scheme which provided that failure to achieve one metric automatically disentitled an employee from receiving payment for the other elements achieved. On the contrary, the scheme allocated separate percentages to each category, suggesting that each could be earned independently.

I also accept the Complainant's argument that the survival figures relied upon by the Respondent were significantly affected by circumstances which pre-dated his management of the operation. While it was open to the Respondent to determine that the survival target had not been met, I do not accept that this justified withholding payment for the two elements which had been achieved.

I further attach weight to the evidence that the Complainant's recently departed manager had indicated that he was due to receive a bonus, in a manner where it was always measured at that location.  The Respondent did not contradict this evidence. While not decisive in itself, it supports the Complainant's contention that those most familiar with the operation of the scheme considered him to have qualified for payment and gave rise to a legitimate expectation that the bonus would be paid.

I am also struck by the evidence that the bonus arrangements operating at Gerahies did not neatly align with the arrangements relied upon by the Respondent in respect of other locations. The evidence suggested that Gerahies was assessed on the basis of site-specific performance measures. In those circumstances, I am satisfied that the Respondent's reliance on broader aggregated data did not provide a reliable basis for refusing payment.

Taking all of these matters together, I am satisfied that the bonus in question was not a purely discretionary payment but one linked to measurable performance outcomes. The Complainant achieved two of the three relevant criteria and thereby became entitled to the corresponding payment, where no other explicit proviso was explained to him.

The Complainant submitted a detailed calculation prepared by an accountant which assessed his entitlement at 14% of his annual salary of €46,000, amounting to €6,440. I am satisfied that this calculation accurately reflects the value of the bonus earned and no alternative calculation was presented which would justify a different figure.

CA-00073155-001: 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.

CA-00073155-002: 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, I find the Complainant was not unfairly dismissed under the general provisions of the Unfair Dismissals Acts 1977-2015.

CA-00073156-001: For the reasons outlined above, I find the complaint underthe Payment of Wages Act 1991 to well founded, and I direct the Respondent to pay the Complainant the sum of €6,440, less any lawful deductions.  

Protected disclosure. Unfair Dismissals Act 1991.