Two recent judgments of the Circuit Court and High Court provide valuable guidance on the subject of protected disclosures (PDs). In Cullen v Kilternan Cemetery Park Limited IECC 2, the Circuit Court rejected an application for an extension of the 21-day time limit for interim relief under the Protected Disclosures Act 2014 (Act), as the employee had not shown “good reason” for his delayed application. In Clarke v CGI Food Services Limited IEHC 368, the High Court held that the employer must continue to employ the employee until a determination has been made by the Workplace Relations Commission (WRC) regarding a disclosure made under the Act.
Cullen v Kilternan Cemetery Park
Mr Cullen (Cullen) was employed as general manager with Kilternan Cemetery Limited (employer) from January 2016 until his redundancy in February 2020. Cullen was unhappy with the exit package offered and sought to use the Act in respect of alleged irregularities on the planning status of the cemetery garden to enhance his negotiating position.
What’s the legal position?
Schedule 1 of the Act provides for interim relief pending the determination of unfair dismissal (UD) proceedings where an employee claims to have been dismissed wholly or mainly for having made a PD. Interim relief can include reinstating the employee to his / her role, re-engaging the employee in another role (with terms and conditions not less favourable to those originally held) or ordering the continuation of the employee’s contract of employment until the UD claim is dealt with (including payment of salary, benefits and pension entitlements).
An application for interim relief must be made to the Circuit Court before the end of the period of 21 days immediately following the date of dismissal. The Circuit Court may extend that period.
Cullen’s application for interim relief was delayed by three months. He sought an order extending the 21-day deadline.
What did the Circuit Court decide?
The Court held that each application for an extension of time must be considered on its own facts against a fair and reasonable objective standard. The Court outlined 10 factors to consider here:
- nature of the relevant disclosure
- nature of the dismissal involved
- length of time since the 21-day period expired
- capacity and ability of the applicant to make the application to the court
- nature of the employer and employee relationship
- extent of legal advice afforded to an applicant
- applicant’s explanation of the delay
- merits of the case
- prejudice that any party might suffer due to delay
- extent to which it would be just and equitable to grant an extension
The Court held that Cullen had not shown “good reason” for an extension. He had failed to establish that his PD was the main reason for his dismissal. Rather he had attempted to use the PD “as a sword of Damocles over his employer to enhance his negotiating stance” for a better exit package.
Ultimately, the Court concluded that “a threat to an employer is not a protected disclosure”.
Clarke v CGI Food Services Limited
Mr Clarke (Clarke) commenced employment as a group financial controller with CGI Food Services Limited (employer) in January 2017. Later that year he raised concerns over payments to directors and subsequently raised further issues including misuse of company credit cards, food safety and Revenue matters.
While the employer pointed to performance issues justifying his dismissal, Clarke submitted that issues with his performance only arose after he had raised concerns. Clarke issued Circuit Court proceedings, challenging his dismissal.
The Circuit Court granted interim relief, ordering the employer to maintain Clarke’s pay and benefits pending the determination of his complaint by the WRC. The employer subsequently appealed to the High Court.
What did the High Court decide?
The High Court dismissed the appeal. The Court made an order for continuation of employment until the final determination of the claim before the WRC and any related appeal.
The employer claimed that Clarke had not mentioned PDs until after his dismissal and was attempting to re-characterise matters to avail of statutory protections, however the Court found that Clarke’s failure to invoke the Act until after his dismissal was not fatal.
The Court held there were substantial grounds for contending that the dismissal resulted wholly or mainly from the making of a PD. The fact that Clarke’s performance issues only emerged after he raised the relevant concerns was persuasive.
The foregoing cases are instructive for employers dealing with the dismissal of an employee against the backdrop of a PD. A number of practical take-aways are summarised below:
- unlike UD, claims under the Act do not require one year’s service with the relevant employer
- compensation awards under the Act can reach up to five years’ remuneration
- as illustrated in Clarke, employers may be required to continue paying salary and benefits to a dismissed employee pending the determination of his/her UD claim before the WRC
- employers are advised to have a comprehensive whistleblowing policy in place that is easily accessible by employees and consistently adhered to
- welcome guidance on the factors a court will consider when determining whether to extend the 21-day time limit is provided in Cullen
- the definition of PD under the Act is very broad. A failure to expressly label a concern as a PD does not necessarily mean the disclosure will fall outside of the ambit of the Act, and
- fair procedures, in the context of a performance management or disciplinary process, remain paramount, in particular where background issues involving PDs are raised. Employers should strive to ensure clear blue water between any such processes and the making of a PD.
Contributed by Robert Glascott, Ruth Fahy and Richard Smith