High Court: Worker loses appeal against finding that communication was a grievance and not a protected disclosure



High Court
High Court

A man who argued that he was unfairly dismissed from his employment after making a “protected disclosure” has lost an appeal against the Labour Court’s finding that, in stating that his work was causing him pain, his communication was an expression of grievance and not a protected disclosure.

Satisfied that the Labour Court did not determine that a grievance could never be a protected disclosure, Ms Justice Miriam O’Regan found no error of law in the decision.

Background

In October 2000, Tibor Baranya commenced employment with Rosderra Irish Meats Group Limited. In June 2015, Mr Baranya left his employment with Rosderra to look at opportunities in the Netherlands; however, in early July 2015, Mr Baranya returned to Ireland and contacted Rosderra informing them that his plans had not worked out.

On Friday 3 July 2015, Mr Baranya met with Rosderra’s HR Manager and one of the supervisors, who told him that they were short of staff to do ‘back-scoring’ and that he could start on Monday.

On 18 September 2015, Mr Baranya was dismissed.

Unfair dismissal complaint

Mr Baranya complained that he had been unfairly dismissed contrary to the Unfair Dismissals Acts 1977 – 2015. However, in the Workplace Relations Commission, it was found that Mr Baranya did not have one year’s continuous service, and his complaint did not trigger any exceptions – thus his claim was dismissed.

In the Labour Court, Mr Baranya appealed against the Adjudication Officer’s decision, and submitted that when he returned to work for Rosderra, he was not given a contract, nor was he told that it was a fixed term contract for 12 weeks. He said that he was put back on his old rate of pay and assumed that he was back permanently.

Mr Baranya also said that, when he returned to work, he informed his supervisor that he did not want to do back-scoring as it caused him a lot of pain. Further, by 15 September 2015, “the pain had reached such a degree” that he repeated his concerns to his supervisor that he was in a lot of pain due to the back-scoring work, and requested to move to another role.

Mr Baranya argued that this was a protected disclosure, and that he made the same disclosure to the Works Health and Safety Manager and also to the HR manager.

Mr Baranya argued that this was a protected disclosure under section 5(3)(d) of the Protected Disclosures Act 2014 in that it was a disclosure of relevant information about a relevant wrongdoing. Section 5(3)(d) states that a relevant wrongdoing is “that the health or safety of any individual has been, is being or is likely to be endangered”.

Rosderra argued that the issue raised was a grievance.

Under the Code of Practice on Protected Disclosures Act 2014 (SI 464/2015), the difference between a grievance and a protected disclosure is addressed in the following terms:

“A grievance is a matter specific to the worker i.e. that worker’s employment position around his/her duties, terms and conditions of employment, working procedures or working conditions. A grievance should be processed under the organisation’s Grievance Procedure. A protected disclosure is where a worker has information about a relevant wrongdoing”.

Rosderra said that the nature of Mr Baranya’s communication was a matter specific to him, and therefore should properly be classified as a grievance.

Chairwoman Louise O’Donnell said the issue to consider was whether the communication was a protected disclosure or a grievance. She said the communication did not disclose any wrongdoing on the part of Rosderra, and therefore it appeared that it was in fact an expression of grievance and not a protected disclosure.

In those circumstances, Chairwoman O’Donnell said Mr Baranya could not rely on the exception to one year’s continuous service, and that he did not have to requisite service to pursue his complaint of unfair dismissal.

High Court

Mr Baranya sought to set aside the determination of the Labour Court insofar as it found that he had not made a protected disclosure. He also claimed that the decision was ultra vires the Protected Disclosures Act 2014.

Firstly, Ms Justice O’Regan found that Mr Baranya failed to demonstrate that the Labour Court misread or misinterpreted section 5 of the of the Protected Disclosures Act 2014 by requiring him to state an allegation of a relevant wrongdoing.

Section 5(2) defines information as “relevant information” if, “in the reasonable belief of the worker, it tends to show one or more of the relevant wrongdoings” – i.e. some information in the relevant communication must attribute some act or omission, on the part of the respondent, that the appellant might reasonably believe tends to show one or more of the relevant wrongdoings is clearly necessary.

Ms Justice O’Regan said that in the absence of any asserted act or omission, the concept of relevant information is not fulfilled in the instant communication as found by the Labour Court.

Secondly, Ms Justice O’Regan was also satisfied that the Labour Court did not determine that Mr Baranya’s communication was a grievance “rather than” a protected disclosure – it stated that the communication was “a grievance and not a protected disclosure”. Ms Justice O’Regan accepted that if the words “rather than” had been used, this could possibly demonstrate a view on the part of the Labour Court that a grievance can never be a protected disclosure.

Thirdly, Ms Justice O’Regan said the Labour Court had not in fact determined that the Code of Practice on Protected Disclosures Act 2014 had an ability to amend the Protected Disclosures Act 2014.

Fourthly, stating that it was “abundantly clear” that the Labour Court did consider Mr Baranya’s initial asserted communication, Mr Justice O’Regan explained that the Labour Court found on the evidence that the communication “was more circumspect than asserted” by Mr Baranya and did not reveal any form of wrongdoing.

In addition, Ms Justice O’Regan was satisfied that the Labour Court identified the entirety of section 5 and said there was no evidence to suggest that there was a failure to consider the full remit of section 5(3).

Finally, Ms Justice O’Regan said the act of seeking out Rosderra’s Health and Safety Officer did not transform the communication into a protected disclosure.

Finding no error of law on the part of the Labour Court, Ms Justice O’Regan dismissed the appeal.

© Irish Legal News Ltd 2020



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