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In a recent case A Finance Manager v A Charity (ADJ-00051548) the Complainant claimed he was unfairly dismissed and submitted a complaint to the Workplace Relations Commission (“WRC”) under the Unfair Dismissals Acts 1977-2015. Because the Complainant had less than a year’s service, ordinarily he would not have the protection of the Unfair Dismissals Acts. However, the Complainant successfully argued the dismissal was wholly or mainly as a result of him having made a protected disclosure and was awarded €34,737. Such cases do not encompass a minimum service requirement on the part of the employee.
Interestingly the Respondent employer made a successful application for the hearing to be heard in private, and the parties’ names anonymised, which was contested by the Complainant. In normal course all WRC hearings are heard in public following the significant Supreme Court decision Zalewski v Adjudication Officer & Ors [2021] IESC 24. The Adjudicator deemed that special circumstances existed in this case, including that ongoing investigations by other state bodies may be prejudiced if the case was heard in public. The work of the Respondent charity is also of a very sensitive nature and this too played a part in the decision to anonymise.
Facts: The Complainant worked as the Finance Manager for the Respondent from 1st September 2023 to 2nd November 2023 (having previously worked for the Respondent as an independent contractor). This case revolves around an email that the Complainant sent to the Respondent’s CEO on 27th October 2023, which the Complainant alleges was a protected disclosure. The Complainant submitted to the WRC this email disclosed issues with accounting records in the Respondent. Specifically, in the email the Complainant was looking for more time to prepare management accounts and mentioned that he must do a “thorough clean up” in order to “pass audit”.
Later emails were exchanged between the Respondent and the Complainant that same day in which further issues were raised by the Complainant regarding the possibility of a conflict of interest in respect of a suggestion that a particular board member would assist the Complainant with anomalies in the management accounts and other outstanding matters. These emails happened on a Friday, following which the Complainant called in sick and remained out sick until his dismissal. The Complainant was then dismissed by letter dated and received on 2nd November. The Complainant claimed this was retaliation for his protected disclosure.
The Respondent denied the Complainant’s email of 27th October was a protected disclosure and contended it was simply a request for more time to submit management accounts and proof that the Complainant regularly could not meet deadlines. The Respondent submitted there were existing performance issues, and the Complainant was terminated during his probation period in line with his contract of employment. The Respondent went into detail in submissions to the WRC and in evidence at the hearing as to the various performance issues it allegedly had with the Complainant. There was one documented meeting around some performance issues prior to the emails of 27th October and subsequent dismissal. Some but not all of the alleged performance issues relied upon by the Respondent at the WRC hearing were referenced in the dismissal letter of 2nd November. There was also a conflict of evidence around the frequency of performance related discussions between the Respondent and the Complainant prior to the emails of 27th October and the subsequent dismissal.
Decision: The Adjudicator, Michael MacNamee, considered the legislative framework established by the Protected Disclosures Act 2014 and its amendments (the “Acts”). The Acts provide for remedies for individuals penalised for making protected disclosures. There are different categories of claims under the Acts. The Adjudicator noted that dismissal-based penalisation claims are processed as unfair dismissal claims under the Unfair Dismissals Acts. These claims are a unique category of unfair dismissal claim, removing the service requirement of one years’ service to bring a claim and increasing the maximum compensation from 2 years remuneration to five years remuneration if the dismissal results wholly or mainly from the making of a protected disclosure.
As well as carefully analysing the relevant legislation, the Adjudicator in his detailed written Decision also engaged in an analysis of the relevant Superior Court Case law on protected disclosures including the recent Court of Appeal Judgement of Ní Raifeartaigh J in the case of Barrett v. Commissioner of An Garda Síochána and Minister for Justice [2023] E.L.R 165. The Adjudicator noted paragraph 114 of that Judgment which sets out a summary of points to be considered when determining whether a disclosure is a “protected disclosure”. Among the other principles discussed by the Adjudicator from that summary, the Adjudicator paid close attention to Ní Raifeartaigh J’s comment that:
“A Court should be alive both to the possibility that actions by the employer which ostensibly appear legitimate on their face may in reality be connected to a protected disclosure, and the possibility that an employer is taking bona fide steps in respect of an employee who is making unfounded allegations of a connection between the two events.”
Ultimately, notwithstanding the Respondent’s arguments to the contrary, the Adjudicator determined that the first email from 27th October from the Complainant was a protected disclosure. The Adjudicator noted that there is no provision in the Acts which requires an employer to be aware that a disclosure is a protected disclosure in order for it to be deemed as such.
The Adjudicator observed that as this claim was a dismissal-based penalisation claim the burden of proof was on the employee to establish that the dismissal resulted wholly or mainly from making the protected disclosure. Upon review of the evidence presented, the Adjudicator found it probable that the CEO of the Respondent had concerns (whether justified or not) about the Complainant’s performance, which were discussed at least once. However, the Adjudicator found the sudden shift from coaching in respect of those alleged performance issues to the Complainant’s dismissal without warning to be rooted in the email sent on 27th October. On the balance of probabilities, the Adjudicator found it likely that the CEO had a strong averse reaction to the email and that this email “started a chain reaction which led directly to the Complainant’s dismissal”.
The Complainant requested reinstatement. However the WRC Adjudicator did not believe this was a workable or practical remedy in this case. The Complainant was awarded the sum of €34,737 by way of compensation for the unfair dismissal. The Adjudicator went into detail on the calculation of this compensation representing losses attributable to the dismissal, and indicated he reduced the amount to reflect the partial failure by the Complainant to mitigate his losses.
The Decision contains a useful outline of how the Adjudicator calculated recoverable losses in this case in circumstances where the Complainant had obtained but then subsequently lost new employment following the dismissal and later taken up further new employment.
Takeaway for Employers: Employers should note that whistleblowers who raise concerns of wrongdoing by their employers have strong legal protections. They are protected from being penalised or suffering detriment at work as a result, even in circumstances where their protected disclosure is ultimately determined to be factually incorrect (as long as at the time the worker held a reasonable belief they were reporting a genuine wrongdoing).
As many employers are aware, an employee normally requires at least one years’ service to bring a claim of unfair dismissal before the WRC. However, there are specific exceptions; notably, if the complainant’s dismissal is found to have been penalisation for making a protected disclosure. Here, no service is required. Employers need to tread carefully where employees flag items of concern or bring issues to their attention. As is evident from this case, it is not a requirement that the employer is aware a certain report or communication is a protected disclosure, for it to be deemed as such.
Public organisations and all private organisations with over 50 employees have a legal obligation to ensure they have a whistleblowing policy in place detailing reporting channels. However, it is best practice for all organisations to have well-documented protected disclosure/whistleblowing policies in place in order to give employees and employers a clear framework for the reporting and the investigation of protected disclosures.
Link – https://www.workplacerelations.ie/en/cases/2025/june/adj-00051548.html Authors – Tara Kelly and Laura Killelea
31st July 2025
Anne O’Connell Solicitors
19-22 Lower Baggot Street
Dublin 2.