Celtic Working Platforms Ltd (Represented by Tom Mallon B.L., Instructed by George v Maloney & Company Solicitors) v Mr Cian Carlin
| Jurisdiction | Ireland |
| Judgment Date | 24 November 2022 |
| Judgment citation (vLex) | [2022] 11 JIEC 2401 |
| Docket Number | FULL RECOMMENDATION ADJ-00030417, CA-00040670-001 DETERMINATION NO. UDD2264 SECTION 8A, UNFAIR DISMISSAL ACTS, 1977 TO 2015 |
| Court | Labour Court (Ireland) |
FULL RECOMMENDATION
UD/21/79
ADJ-00030417, CA-00040670-001
DETERMINATION NO. UDD2264
SECTION 8A, UNFAIR DISMISSAL ACTS, 1977 TO 2015
Full Court
Chairman: Ms Connolly
Employer Member: Mr Murphy
Worker Member: Ms Tanham
1. Appeal Of Adjudication Officer Decision No(S)ADJ-00030417, CA-00040670-001
2. The Worker appealed the Decision of the Adjudication Officer to the Labour Court on 10 December 2021 in accordance with Section 8A of the Unfair Dismissals Act 1977 to 2015. A Labour Court hearing took place on 8 September, 2022. The following is the Determination of the Court:-
This is an appeal by Mr Cian Carlin against an Adjudication Officer's Decision ADJ-00030417 dated 18 November 2021 given under the Unfair Dismissals Acts 1977 to 2015 (“the UD Act”) in a claim that he was unfairly dismissed by his former employer, Celtic Working Platforms Ltd, having made a protected disclosure as defined under the Protected Disclosures Act 2014 (“the 2014 Act”).
The Adjudication Officer held that he could not find that Mr Carlin was unfairly dismissed, as section 2(1)(c) of the UD Act sets out that provisions of the UD Act do not apply to a person who is employed by certain family members.
A Notice of Appeal was received by the Labour Court on 10 December 2021 and a hearing conducted on 8 September 2022. For ease of reference the parties are referred to in this Determination using the same designation as at first instance. Hence, Mr Cian Carlin is referred to as “the Complainant” and Celtic Working Platforms is referred to as “the Respondent”.
The Complainant raised a preliminary matter with the Court. He submitted that the Adjudication Officer's finding that the UD Act did not apply to him, on the basis of Section 2(1)(c) of the Act, was flawed for a number of reasons. Section 2(1) of the Act provides:-
2.—(1) Except in so far as any provision of this Act otherwise provides this Act shall not apply in relation to any of the following persons:
• (c) a person who is employed by his spouse, civil partner within the meaning of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010, father, mother, grandfather, grandmother, step-father, step-mother, son, daughter, grandson, granddaughter, step-son, stepdaughter, brother, sister, half-brother or half-sister, is a member of his employer's household and whose place of employment is a private dwelling house or a farm in or on which both the employee and the employer reside,…
The Complainant submitted that he was employed by a corporate entity and not by his father. He has not resided in the same building as his father for over twenty years. His place of employment was not the same private dwelling house or farm in or on which he or his father resides. As a result, section 2(1)(c) of the Act was not applicable to him.
The Respondent did not challenge this aspect of the submission and accepted the position as outlined by the Complainant. As neither party raised any jurisdictional issues in relation to the Complainant's locus standi relating to Section 2(1) of the Act, the Court proceeded to hear the complaint as a de novo appeal.
The Complainant was employed as a general operative for the Respondent on various dates between 2019 and 2020. The company is owned by his father, Donal Carlin. The Complainant had less than 12 months service so relies on provisions within the Protected Disclosures Act 2014 as the basis of his complaint that his dismissal was not fair. He submits that he made a protected disclosure to a prescribed person on 4 October 2020, immediately following which he was suspended from his employment, dismissed, and had his identity revealed to multiple third parties.
Furthermore, the Respondent attempted to cover their tracks by undertaking a disgraceful campaign to smear his good reputation by making up a falsehood that he had threatened to murder a colleague.
The Complainant told the Court that prior to working for his father he worked for many years in the insurance industry as an underwriter, claims investigator, and latterly as an insurance broker. During the course of his insurance career, he gained extensive experience of analysing, identifying, and managing risk exposures, which gave him insight into health and safety concerns at the firm.
On the day before the incident giving rise to the protected disclosure, the Complainant met his father to discuss a job opportunity that had arisen with an insurance broker. His father encouraged him to stay working for his firm and offered him a promotion and a pay rise.
On 4 October 2020 the Complainant attended work at the Mannok Cement Factory in Ballyconnell, Co Cavan. He was working 12-hour shifts as the plant was on one of its triannual maintenance shutdowns. He observed a senior employee throw scaffolding fittings through a small hatch towards a junior employee in anger. He became concerned for the safety of the junior employee and remonstrated with the senior employee. After a heated exchange he reported the incident to the scaffolding operations manager. The operations manager was very reluctant to do anything about his report. He was subsequently sent home.
On 5 October 2020, the Complainant called his father to arrange a meeting to discuss the events of the previous day. His father refused to meet with him and asserted that the Complainant was the one who was wholly responsible for the heated exchange. Later that evening he received an email from the operations manager informing him that he no longer had a job with the firm.
On the 6 October 2020, he received an email informing him that he was suspended from his employment and requesting that he attend a formal meeting on 8 October 2020. He attended the meeting on the 8 October 2020 with his fiancée. His father, Donal Carlin, and the operations manager, Sean McManus, also attended. The Complainant recorded the meeting on his phone, unbeknownst to his father and Sean McManus. His father informed him that he would review the evidence and revert on 15 October with his decision about the Complainant's future with the firm.
On 12 October 2020 the Complainant contacted the Citizens Advice Centre in Cavan who advised him to initiate a grievance procedure with the firm, and to report the incident involving the senior employee to the Health & Safety Authority. He emailed his father to initiate the grievance procedure. Twelve minutes later he received a reply advising him that his position was terminated.
The Complainant submits that the Respondent had a very relaxed view of health and safety concerns which resulted in a very weak attempt to investigate the incident. Oral statements were taken from witnesses but no notes or report written up. Multiple witnesses were interviewed together at the same time which could have compromised their statements. The incident was not reported to Mannok Cement Health & Safety personnel. The operations manager admitted that he had on occasion tossed scaffolding fittings in the past and did not believe it to be a health and safety risk.
The Complainant told the Court that he has no criminal conviction and was not accused of injuring anybody. The idea that he was brandishing a weapon is nonsense. A podger spanner is a common tool used by scaffolders. If he posed a grave and reckless danger, why was he sent to a cabin with that spanner. Mr McManus could have sent for site security, or the Gardai, or Mr Donal Carlin.
The Complainant reported a protected disclosure to a prescribed person, who failed to investigate that matter or make any report. At the WRC hearing the Respondent conceded that a protected disclosure was made.
Mr Mallon B.L., on behalf of the Respondent, said that notwithstanding what was said at the WRC where the Respondent was not represented, the Complainant did not make a protected disclosure within the meaning of the Act, and his dismissal was by reason of his own gross misconduct and not by reason of any disclosure made by him.
The Complainant was employed as a general operative from 1 June 2020 until his dismissal on 16 October 2020. On 4 October 2020 he was working for the Respondent at a third party's premises. The Respondent was erecting scaffolding as part of a major overhaul of a substantial manufacturing premises. Part of the work required persons to be inserted into a silo in which scaffolding was being erected. The persons inside the silo were wearing protective clothing, including breathing apparatus.
The Complainant and another employee were cleaning fittings for use inside the silo and then passing these fittings to the scaffolders through a hatch. Some of the fittings cleaned by the Complainant and the other employee were rejected by the scaffolders working inside the silo. The Complainant took the view that this was inappropriate and approached the hatch to the silo to remonstrate with one of the workers inside the silo. It is accepted that words were exchanged.
The Respondent submits that the Complainant accepts that he got very annoyed and that he was no longer in control of the situation so opted to leave. He reported the matter to the general manager, Sean McManus. He accepts that he was seething and that he told the general manager that he was going to hit Paddy with a spanner, which is a particular scaffolding tool with a significant pointed edge.
In order to diffuse the situation, the Complainant was asked to leave the site for the day. He was then placed on paid suspension pending an enquiry. The general manager conducted an investigation and spoke with the other workers involved. He also discussed the matter with the managing...
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