Background of the case

The employee appealed to the Tribunal following a recommendation from the Rights Commissioner under the Unfair Dismissal Act, 1977 to 2007.   The respondent provides cleaning, maintenance and security to clients. The claimant worked in the property side of the business. There were two property managers, the claimant and his colleague working together.

There was a history of issues between the two managers and the MD. The claimant brought a complaint to the HR manager in relation to a conflict of interest. He believed the MD was favouring someone for tenders (BO’G) whom she had a close relationship with. The HR manager advised him of the Whistleblowing policy. The claimant submitted a complaint and later retracted it.

The HR manager advised the claimant he couldn’t withdraw the complaint due to the serious nature of it and following this the matter was referred to a Group Executive who implemented the disciplinary process.

The MD advised the claimant that the Christmas Market contract was being given to BO’G despite him being of the belief that negotiations for the contract were still underway.  Later that day the claimant noticed a crowd gathering and saw the MD on the ground. The health and safety officer confirmed that the MD had broken her leg. BO’G arrived at the accident, moved the crowd away and accompanied the MD in the ambulance.

The claimant re-opened the complaint and also raised a bullying and harassment complaint against senior management. All complaints were found to be unsubstantiated. It was also found that the relationship had broken down.

Following the disciplinary process, the decision was taken to dismiss the claimant. The disciplinary officer did not believe there were genuine grounds for him to believe that the MD was favouring BO’G other than to cause damage to the MDs reputation in a vindictive and malicious manner. The dismissal was also based on performance issues, and failure to obtain his fire alarm and license application.

Determination

The Tribunal stated the dismissal took place prior to the Protected Disclosure legislation being enacted in Ireland, however, the company had a subsidiary of a UK company whose staff handbook had a Whistleblowing policy.

The policy states that the staff have a role to play when it comes to expressing their concerns regarding concealment of illegal and unethical behaviour.

The tribunal found that the claimant jumped to conclusions when he saw BO’G attend to the MD following the accident. This conclusion was unreasonable to link to the contract for the Christmas market, however, does not mean he knew the allegations to be untrue.

The Tribunal stated that the use of Gross Misconduct was inappropriate. The reason for dismissal was linked to other matters of a less serious nature such as, performance related concerns and failure to complete license application. As such, the respondent failed to show substantial reasons to justify dismissal.

Learning points

• Employers should ensure to take all complaints made under their Whistleblowing policy seriously, regardless of whom they are made against
• It is important to ensure to treat employees fairly following such complaints
• It is proven difficult to discipline employees for raising vexatious or malicious complaints without sufficient evidence
• Compensation for employees being victimised under protected disclosure legislation is up to a maximum of five years pay

For more information in relation to protected disclosures and the effect on your organisation you can contact the advice team on 01 886 0350