About this case:

• Citation:
  [2021] IESC 77
• Judgment:
  External link
• Court:
  Supreme Court
• Judge:
  Mr Justice Gerard Hogan

Further, it was held that the Protected Disclosures Act 2014 provided protections for personal complaints in relation to workplace health and was not limited to cases of whistleblowing. Accordingly, the court held that the Code of Practice 2015 incorrectly stated that personal complaints fell outside the scope of protected disclosures.

Background

The appellant was a worker from Hungary who worked in a meat plant as a skilled butcher. The plant was run by his employer, Rosderra Irish Meats Group Limited. In June 2015, the appellant left his job in order to either return to Hungary or pursue a job in the Netherlands.

However, a few weeks after terminating his contract, the appellant asked for his job back. He began again in July 2015. He claimed to be taken back on a permanent basis but Rosderra claimed that it was a 12-week contract.

In September 2015, the appellant complained to his employer about pain, which arose from the “scoring” of meat. The appellant contended that he informed his employer that he did not want to do this type of work because it caused him pain. The respondent argued that he did not state that his job caused him pain and, instead, contended that the appellant merely stated he was in pain.

The appellant was dismissed three days later after he had walked off the production line. The appellant brought a claim against Rosderra in the Workplace Relations Commission under the Unfair Dismissal Act 1977. The 1977 Act only applied to employees with 12 months continuous employment, which appeared to preclude the appellant who had originally left the job in June 2015.

However, there was an exception to the 12-month rule for employees dismissed for making a protected disclosure. As such, the appellant argued that he had been dismissed for making such a disclosure regarding his pain from performing the job.

Section 5(3) of the 2014 Act defined a protected disclosure as the “a disclosure of relevant information by a worker.” The section defined “relevant information” as that which tended to show wrongdoing by an employer.

Crucially, the 2014 Act defined a “relevant wrongdoing” as including 1) that an employer was failing to comply with a legal obligation, other than one arising from the worker’s contract of employment and 2) that the health or safety of any individual was or was likely to be endangered.

The WRC rejected the complaint and the case was appealed to the Labour Court. The Court held that the complaint did not disclose any wrongdoing on the part of Rosderra and was in fact an expression of a grievance rather than a protected disclosure. In so ruling, the Labour Court considered the 2015 Code of Practice, which had enacted by way of statutory instrument. The 2015 Code stated that a grievance arose from the personal employment terms and conditions of a worker and was excluded from the scope of protected disclosures.

The appellant challenged the Labour Court’s determination in the High Court, but this was rejected. As such, the appellant appealed to the Supreme Court.

Supreme Court

Delivering judgment in the case, Mr Justice Gerard Hogan determined that the Labour Court had erred in its assessment of the case. The court observed that section 5 of the 2014 Act appeared to exclude complaints which relate to the worker’s personal contract of employment. However, the court described this exclusion as “deceptive and, at one level, ineffective”.

The court gave the example of an employee who complained that his employer was not complying with payment obligations. The court said that, while any alleged contractual default could not be a protected disclosure under section 5, an alleged failure to comply with statutory obligations under the Payment of Wages Act 1991 could be defined as such.

Accordingly, the court stated that “many complaints made by employees which are entirely personal to them are nonetheless capable of being regarded as protected disclosures for the purposes of the 2014 Act.” Further, a complaint about an employee’s own health or safety was clearly within the remit of a protected disclosure, the court said.

The court moved to consider the 2015 Code of Practice, which introduced a distinction between a grievance and a protected disclosure. The court held that no such distinction was drawn in the 2014 Act. The court held that the 2015 Code misstated the law by providing that conditions of employment were strictly personal grievances.

The court reiterated that only the Oireachtas had the power to legislate and that primary legislation was required to amend an Act (Cooke v. Walsh [1984] IR 710). However, the 2015 Code de facto amended the 2014 Act so that a grievance could never amount to a protected disclosure. This was simply incorrect based on section 5 of the 2014 Act, the court said.

Further, Mr Justice Hogan held that the Labour Court had failed to make satisfactory findings of fact in the case. The court held that it was essential to make a finding of what the appellant actually said to his employer in order to determine if his statement amounted to a protected disclosure. Since there was a dispute between the parties about what was said, the Labour Court was required to make clear findings of fact.

The court held that the Labour Court’s decision did not make any relevant finding of fact and merely described the nature of the complaint. The court held that this was an error of law (National University of Ireland v. Ahern [2005] IESC 40).

Conclusion

In light of the court’s conclusions, the appeal was allowed. The matter was remitted back to the Labour Court to determine the factual dispute over the appellant’s comments to his employer and, if necessary, consider whether the appellant was dismissed unfairly.