Nolan v Fingal County Council

• Jurisdiction: Ireland
• Judge: Ms. Justice Siobhán Phelan
• Judgment Date: 02 June 2022
• Neutral Citation: [2022] IEHC 335
• Court: High Court
• Docket Number: [Record No. 2021/188 MCA]

In the Matter of an Appeal Pursuant to Section 46 of the Workplace Relations Commission Act, 2015

And in the Matter of the Protected Disclosures Act 2014

Between:

Tom Nolan

Appellant

and

Fingal County Council

Respondent

[2022] IEHC 335

[Record No. 2021/188 MCA]

THE HIGH COURT

Point of law – Statutory interpretation – Protected Disclosure Act 2014 s. 5(3) – Appellant appealing on a point of law from a decision of the Labour Court– Whether the Labour Court erred in law in concluding in reliance on s. 5(5) of the Protected Disclosure Act 2014 that the complaint made by the appellant did not constitute a “relevant wrongdoing” within the meaning of s. 5(3) of the 2014 Act

Facts: The appellant, Mr Nolan, appealed to the High Court on a point of law pursuant to s. 46 of the Workplace Relations Commission Act 2015 from a decision of the Labour Court made on the 5th of July, 2021 in connection with a claim brought by the appellant pursuant to the provisions of the Protected Disclosure Act 2014. The appeal was uncontested by the respondent, Fingal County Council, who was the appellant’s employer. There was no appearance from the statutory notice parties to the appeal. In determining the appeal on a point of law, Phelan J had heard submissions from the appellant only. The appeal was concerned with the proper interpretation of “relevant wrongdoing” as defined by s. 5(3) of the 2014 Act, having regard to the terms of the exemption as provided for under s. 5(3). The fundamental issue in the appeal was whether the Labour Court erred in law in concluding in reliance on s. 5(5) of the 2014 Act that the complaint made by the appellant did not constitute a “relevant wrongdoing” within the meaning of s. 5(3) of the 2014 Act.

Held by Phelan J that she would allow the appeal because it was her view that the Labour Court applied s. 5(5) on the erroneous basis that it excludes a complaint relating to health and safety which fell to be investigated by an employer. Phelan J held that interpreting s. 5(5) in a broad manner such as would exclude a complaint with regard to health and safety whether made against an employer or against a third party is an error of law which operates to defeat the purpose of s. 5(3)(d) which expressly provides for complaints in relation to the endangerment of the health and safety “of any individual”.

Phelan J held that she would accordingly remit the matter to the Labour Court so that it could determine afresh whether the complaint amounted to a “protected disclosure” for the purposes of the 2014 Act in the light of the conclusions contained in the judgment.

Appeal allowed.

JUDGMENT delivered by Ms. Justice Siobhán Phelan on the 2 ^nd day of June, 2022

INTRODUCTION

1 . This application come before the Court by way of an appeal on a point of law pursuant to s. 46 of the Workplace Relations Commission Act, 2015 [hereinafter “the 2015 Act”] from a decision of the Labour Court made on the 5 ^th of July, 2021 [hereinafter “the Decision”] in connection with a claim brought by the Appellant pursuant to the provisions of the Protected Disclosure Act, 2014 [hereinafter “the 2014 Act”].

2 . The appeal was uncontested by the Respondent who is the Appellant's employer. There was no appearance from the statutory notice parties to the appeal.

3 . Section 46 provides for an appeal on a point of law taken by a party to proceedings before the Labour Court and the decision of the High Court in relation thereto “ shall be final and conclusive”. In determining this appeal on a point of law, I have heard submissions from the Appellant only.

4 . This appeal is concerned with the proper interpretation of “ relevant wrongdoing” as defined by s5(3) of the 2014 Act, having regard to the terms of the exemption as provided for under s. 5(3).

BACKGROUND

5 . The factual background is undisputed. In summary, the Appellant was successful in an internal competition for the post of Acting Grade 7 in or about September 2013. From his appointment and until the matters the subject of complaint to the WRC arose, he was responsible for Traveller housing issues. It is claimed that he had an unblemished work history and had never been subject to discipline or criticism by his employer. In the course of 2017 and 2018, however, he claimed to have been subjected to harassment and intimidation from a number of service users both at his place of work and outside his place of work in connection with his work role. These included being approached and threatened, not least being visited at his home. The Appellant reported these incidents to his line manager and it is the Appellant's case that his reporting of these matters constituted a protected disclosure within the meaning of the 2014 Act.

6 . The response of the Respondent to the Appellant's report was to transfer him to a different role at a different location. In consequence of this transfer the Appellant's position was a downgraded to Grade 6, which the Respondent referred to as his “substantive post” as he was no longer acting up in the Grade 7 position. It was the Appellant's case as referred to the Workplace Relations Commission [hereinafter “the WRC”] that the Respondent's response to his protected disclosure constituted penalisation within the meaning of the Act of 2014.

7 . The Appellant's complaint to the WRC was couched in the following terms:

“I was promoted to a Grade 7 position in the Traveller Housing Section, Fingal CC in 2013. This was and ins a very challenging role and section. I was subject to harassment, intimidation and threatening behaviour as part of my role dealing with the public. I notified my employer of a number of particularly bad incidents of harassment and threatening behaviour in late 2018. Following this notification, I was removed from the section where I was working for 5 years approximately and subsequently I was demoted to Grave 6 (Senior Staff Officer). I did not request this demotion and/or relocation. This was against my wishes. I was informed of this change of role /demotion by email. As a result of that demotion, my pay is significantly less and I have lost out on pension increments…..I disclose information which showed that wrongdoings (as defined under s. 5(3) of the Protected Disclosure Act, 2014) had occurred, were occurring and were likely to occur. In particular Section 5(3)(a) and (d) in that regard. In summary these wrongdoings were acts of harassment, threats and intimidation to which I was subject to by certain service users of the Travellers Housing Section. It is clear from the facts that arising from my valid Protected Disclosure to my supervisors/managers and not any other reason, I was demoted (to Grade 6) and transferred (to a different section) and I have accordingly suffered significant detriment and penalisation”

8 . In addition to proceedings under the 2014 Act, the Appellant also commenced proceedings pursuant to the provisions of the Protection of Employees (Fixed Term Work) Act 2003, the Terms of Employment (Information) Act 1994 and the Payments of Wages Act 1991. None of the latter claims are before me and they remain outstanding before the Labour Court.

9 . The matter first came on for hearing before an Adjudication Officer of the WRC in July 2019 and the parties made written submissions, as is normal practise. The Adjudication Officer issued his determination on 14 ^th August 2020. In respect of the protected disclosure claim he found that the matters reported by the Appellant did not amount to protected acts and in those circumstances, he did not have to consider the question of penalisation under the legislation and accordingly the complaint failed. In relevant part of the Decision, the WRC stated:

“Upon consideration of the relevant legislation and aforementioned case law, I find that the aforementioned traumatic incidents endured by the Complainant were not committed by the Respondent or its servants or agents but by a third party who were effectively end users outside of the workplace. I have not been persuaded nor has any evidence been adduced or submitted that satisfied me that protected disclosures can be made in relation to actions by a third party/end user outside of the workplace as in the circumstances of this particular case.”

10 . The matter was appealed by the Appellant to the Labour Court and again in accordance with the practise of that Court both parties made written submissions. Of its own motion the Labour Court invited supplemental submissions from the parties in respect of two decisions of the High Court identified as relevant to issues arising on the appeal, namely Power v. HSE [2019] IEHC 462 (Allen J.) on the question of fixed term contracts and Baranya v. Rosderra Irish Meats Group Limited [2020] IEHC 56 (O'Regan J.) on the protected disclosure issue. The parties both elected to make further written submissions.

11 . It was the Appellant's case before the Labour Court that the matters he reported to his superiors constituted “relevant wrongdoings” as defined in the 2014 Act and that his report constituted the giving of “relevant information”. Of note, the Appellant did not invoke the internal protected disclosure procedure when making his complaint, but the Appellant contended that it nonetheless constituted a protected disclosure. It was further disputed by the Respondent that the Appellant had made a protected disclosure within the meaning of the 2014 Act because it was contended that none of the complaints related to acts or omissions of the employer or any of its officers or employees. It was argued that the Appellant made no allegations of any nature that the Respondent or its personnel had engaged in conduct that meets any of the listed “ relevant wrongdoings”. The Respondent's position might be summarised as being that the complaints did not constitute protected disclosures because they were reported under...