The ramifications of the Protected Disclosures Act 2014 (the “Act”) continue to impact on employers with a second successful interim relief injunction granted by Cork Circuit Court in Catherine Kelly v AlienVault Ireland Ltd and AlienVault Inc. This follows the first successful application for interim relief under the Act which we reported upon here.

Background

In the most recent case, the Plaintiff (Ms Kelly), a manager of an IT office in Cork, raised a catalogue of health and safety disasters with the head office in Texas regarding the premises of their Cork-based office in which 40 people were employed. The complaints related to sewage leaks and grievances about people being locked into the staff toilets. Ms Kelly was subsequently dismissed by telephone and has stated she was told she was being snarky when she brought a report to the attention of US management. The employer alleged that the decision to terminate Ms Kelly’s employment was reached before her complaints were made.

However, Judge Seán Ó Donnabháin was satisfied that Ms Kelly had made a stateable case that she was dismissed because of her “protected disclosure”, as defined under section 5 of the Act. The Judge granted Ms Kelly injunctive relief under the Act to restrain her employer from dismissing her or stopping her pay, pending a full determination of the matter.

Comment

This recent case highlights the significant protections the Act affords and the increasing willingness of the courts to apply these protections. Such successes will likely encourage future whistle-blowers to seek protection under the Act where they perceive a connection between their dismissal and any disclosure made by them in the past.

It is also worth noting that applications for interim relief and penalisation awards are only two of the key remedies afforded by the Act. Employers may also be exposed to a possible sanction of up to five years’ remuneration if the employee succeeds in proving they were unfairly dismissed as a result of their protected disclosure, in addition to a possible claim in tort. 

This case places further emphasis on the fact that employers must exercise extreme caution if they seek to dismiss an employee who has made a protected disclosure. When one looks at the number of recent applications brought under the Act, it emphasises the fact that this legislation is a material concern for employers, both in pre-emptively setting out policies and carrying out employee training, but also in dealing with protected disclosures (or purported protected disclosures) as they arise.
An appeal of this case is listed for mention before the High Court on 27 February 2017 and we will keep you updated on any developments as the appeal progresses in due course.

Contributed by: Catherine O’Flynn and Aedín Brennan

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