High Court: Employee who claimed he was disciplined for protected disclosures loses appeal



The High Court has refused an appeal from a determination of the Labour Court taken by an employee who claimed that he was being disciplined for having made protection disclosures.

Background

Pascal Hosford, a Higher Executive Officer and manager of the finance section of the Department of Employment Affairs and Social Protection, appealed the determination arising from disciplinary proceedings.

The Principal Facilities Management Unit of the Department set out the particulars of his alleged misconduct by way of letter, stating that his behaviour at work was disruptive, and that his ongoing “failure to comply with reasonable management instructions and your failure to comply with civil service policies and procedures” was misconduct. It was said that he inappropriately sent emails to people who had no direct responsibility for the content of the issues raised. Reference was made to a number of occasions on which he was given a specific instruction not to continue with a particular course of action, and where these instructions were not followed. It was said that his behaviour towards other colleagues was inappropriate in the workplace, and that on several occasions he had referred to statements and opinions of colleagues as “nonsense” and “waffle”.

The letter stated that these matters would be raised, in accordance with the Civil Service Disciplinary Code, at a disciplinary meeting. It stated that the purpose of this meeting was to discuss the matters raised and to give him an opportunity to respond and to answer appropriate questions.

The result of these disciplinary proceedings was that he was to receive a final written warning that he should “behave appropriately at work and treat all co-workers with dignity and respect at all times” and that he “should avoid disruptive behaviour at work and comply with reasonable instructions of management”. The warning noted that “any recurrence of the behaviours outlined above may result in further disciplinary action being considered.”

He appealed this decision under an internal appeal procedure, and that appeal was refused. He further appealed the matter to an “external appeals officer”, and this appeal was also unsuccessful. He then made a complaint to the Workplace Relations Commission under the Protected Disclosures Act, arguing that he was being penalised for having made a “protected disclosure” in violation of s.12 of the Act. An Adjudication Officer found against him.

Mr Hosford then appealed the matter to the Labour Court. The appeal before the Labour Court was a hearing “de novo”. The Labour Court in its determination held that the complaints advanced by Mr Hosford under the Act of 2014 were not well founded, and affirmed the decision of the Adjudication Officer.

High Court

Mr Hosford appealed to the High Court, arguing that the Labour Court had erred in law by not making findings nor any “treatise”, with regard to fair procedures and natural justice. He also argued, among other things, that it construed the ‘but for test’ concerning making protected disclosures too narrowly and too restrictively.

Mr Justice Charles Meenan noted that the jurisdiction of the High Court to deal with appeals from the Labour Court is set out in s. 46 of the Workplace Relations Act 2015, which provides that a decision of the Labour Court may be appealed to the High Court on a point of law, and “the decision of the High Court in relation thereto shall be final and conclusive”.

The Supreme Court recently considered this jurisdiction in Nano Nagle School v Marie Daly [2019] IESC 63. The appeal, only arising on a point of law, is not a full appeal. The High Court cannot substitute its own decision for that of the Labour Court, but the judge found that he could investigate whether or not the disclosures made by Mr Hosford were protected disclosures under the Act.

A “protected disclosure” must meet the definition of section 5 of the Act; it must be a disclosure of relevant information made by a worker in the manner specified in ss.1-10. These sections set out to whom the disclosure may be made, which include the employer, a prescribed person, a relevant Minister and a legal advisor. Mr Justice Meenan found that while Mr Hosford made a number of protected disclosures, they were made to numerous persons who did not come within the ambit of ss. 6-10 of the Act.

Conclusion

The court held that the Labour Court acted in accordance with the requirements for fair procedures. Mr Hosford was present and was afforded an opportunity to challenge the evidence against him. Mr Justice Meenan said that it is “entirely clear” that Mr Hosford’s submissions were considered by the Labour Court, as were the relevant statutory provisions. There was a clear, legally sound basis for the finding in its determination that Mr Hosford’s submissions were not well founded, and the judge dismissed his appeal.

© Irish Legal News Ltd 2020



Other judgments by Mr Justice Charles Meenan

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