In an article published in our October 2022 newsletter , we discussed the decision of the Workplace Relations Commission (“WRC”) in ADJ-00033234. This decision was subsequently appealed to the Labour Court. In Conor Williamson v David Stone and Carol Stone t/a Ashton Dog Pound and Warden Service (PDD232), the Labour Court (the “Court”) overturned the WRC decision, finding that there was no causal link between the protected disclosure and the Complainant’s suspension/final written warning.
Facts: The Complainant commenced employment as a Dog Warden with the Respondent in July 2017. On 26th July 2020, the Complainant made a complaint to the Respondent in relation to the euthanasia of a number of dogs in its kennels. As the Respondent did not appear to act on this complaint, he then reported it to the Gardai several days later. His claim to the WRC was that these complaints constituted protected disclosures and that he was penalised by the Respondent due to making them.
The Respondent’s view was that the Complainant believed that by positioning himself as a whistleblower he would be protected from normal performance and disciplinary procedures. The WRC upheld the Complainant’s penalisation complaint and awarded him €18,000 in compensation.
The Respondent appealed this decision in October 2022 and the Labour Court hearing took place in July 2023. The Respondent told the Court that the Complainant was put on suspension due to bullying allegations and a refusal to be on-call. The Respondent received a number of complaints from six members of staff accusing the Complainant of bullying behaviour. The Respondent, following company policy, placed the Complainant on paid suspension in order to investigate the allegations. The Respondent decided to extend a final written warning that had been issued to the Complainant on 15th December 2020, for a further 12 months. This decision was communicated to the Complainant on 27th June 2021.
Decision: The Court was satisfied that a protected disclosure had been made (and this was not disputed by the Respondent), but noted the requirement under section 12 of the Unfair Dismissals Acts that a causal link be established between the protected disclosure and the detriment suffered as a result.
In this case the detriment was that the Complainant felt that he was “subjected to unsafe procedures that lead to unsafe decisions that put him at peril”. These “unsafe procedures” were the investigations, disciplinary procedures and sanctions arising from the on-call issues and alleged bullying complaints from six staff members. The outcome of these procedures was a final written warning for 12 months, which was then extended by a further 12 months following the second disciplinary process.
The Court found that:
“Having carefully studied the submitted documents and listened to the oral arguments and evidence on the day, it appears to the Court that applying the ‘but for’ test to the issues identified by the Complainant in his complaint that these issues would have arisen even if he had not made a protected disclosure.”
The Court considered each of the “detriments” complained of as follows:
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- The Complainant accepted that the disciplinary sanction arising from the first disciplinary process regarding the on-call issue was not related to his protected disclosure.
- The Complainant accepted that the Respondent was obliged to investigate the bullying allegations from its staff members.
- In relation to the Complainant’s suspension, the Court was satisfied that the decision to place the Complainant on suspension was “within the bounds of reasonable behaviour by an employer.”
- In relation to the extension of the Complainant’s final written warning, the Court found that the Complainant had failed to establish any link between the decision to extend his final written warning and his protected disclosure other than that he had made the disclosure to Mr Stone and Mr Stone had decided to extend his final written warning.
The Court concluded that the Complainant failed to establish a causal link between any of the detriments complained of and his protected disclosure and therefore overturned the finding of the WRC:
“The Court determines as set out above that while there may have been some short comings in the manner in which the processes were implemented by the Respondent, these were wholly unrelated to the Complainant’s protected disclosure and therefore no detriment in line with section 12 of the Act arises,”
Takeaway for Employers: This case demonstrates that although employers must ensure that they respond to protected disclosures in an appropriate manner and without penalisation, that does not mean that separate, unrelated performance management, disciplinary or other processes cannot be progressed notwithstanding that a protected disclosure has been made by an employee. Employers must ensure that they can demonstrate to the WRC that there was no causal link between any such processes and any protected disclosure made by an employee.
Authors – Susan Coyle, Jenny Wakely, Anne O’Connell
Links
Labour Court – https://www.workplacerelations.ie/en/cases/2023/august/pdd232.html
WRC – https://www.workplacerelations.ie/en/cases/2022/september/adj-00033234.html