Tibor Baranya v Rosderra Irish Meats Group Ltd

• Jurisdiction: Ireland
• Judge: Mr. Justice Gerard Hogan
• Judgment Date: 01 December 2021
• Neutral Citation: [2021] IESC 77
• Docket Number: S:AP:IE:2021:000027
• Court: Supreme Court

Between/

Tibor Baranya

Appellant

and

Rosderra Irish Meats Group Limited

Respondent

[2021] IESC 77

O'Donnell C.J.

Charleton J.

O'Malley J.

Woulfe J.

Hogan J.

S:AP:IE:2021:000027

AN CHÚIRT UACHTARACH

THE SUPREME COURT

Unfair dismissal – Protected disclosure – Protected Disclosures Act 2014 s. 5 – Appellant claiming unfair dismissal – Whether utterances of the appellant amounted to a protected disclosure for the purposes of the Protected Disclosures Act 2014

Facts: The appellant, Mr Baranya, had been employed as a skilled butcher by the respondent, Rosderra Irish Meats Group Ltd, in a meat plant. On 15th September 2015, he said that he was in pain and indicated to his supervisor that he wished for a change of role. The appellant claimed that he said that he was in pain as a result of work. The respondent maintained that he simply said that he was in pain. Three days later the appellant was dismissed. The respondent maintained that he was dismissed because he had effectively walked off the production line having not waited for management to address his request to change jobs. While the appellant maintained that he had in effect been in continuous employment for more than twelve months, he also claimed that he had been dismissed because he had made a protected disclosure by way of the communication he had made on 15th September 2015. He then sought to challenge his dismissal by initiating a claim for unfair dismissal before the Work Place Relations Commission on 8th October 2015 under the Unfair Dismissals Acts 1977 to 2015 (the 1977 Act). That complaint was first referred to an Adjudication Officer of the Workplace Relations Commission. In her decision of 21st August 2018, she rejected the complaint that the dismissal resulted wholly or mainly from having made a protected disclosure within the meaning of s. 5 of the Protected Disclosures Act 2014. The appellant duly appealed that decision to the Labour Court in accordance with s. 8A of the 1977 Act. In its determination of 8th April 2019, the Labour Court found that the communication in question did not constitute a protected disclosure “because it did not disclose any wrongdoing on the part of Rosderra” and that the communication in question “was in fact an expression of grievance and not a protected disclosure”. That finding was upheld by the High Court (O’Regan J) in her judgment delivered on 13th February 2020: [2020] IEHC 56 in which she found that the appellant had failed to establish any error of law on the part of the Labour Court. By a determination dated 2nd July 2021, the Supreme Court granted leave to appeal pursuant to Article 34.5.4 of the Constitution: [2021] IESCDET 72.

Held by Hogan J that he would allow the appeal because, first, the Labour Court applied the Industrial Relations Act 1990 (Code of Practice on Protected Disclosures Act 2014)(Declaration) Order 2015 (SI No. 464 of 2015) which erroneously stated that purely personal complaints in relation to workplace health and safety fell outside the scope of protected disclosures for the purposes of s. 5 of the 2014 Act and, second, the Court failed to make sufficiently clear and precise findings of fact as to what exactly was said.

Hogan J accordingly remitted the matter to the Labour Court so that it could determine afresh whether the utterances of the appellant amounted to a “protected disclosure” for the purposes of the 2014 Act. Hogan J held that, in the event that that Court were to decide that there was a protected disclosure, it would then be a matter for that Court to decide the subsequent question of whether the dismissal was wholly or mainly brought about by virtue of the protected disclosure and was accordingly rendered unfair as a result by reason of the operation of s. 6(2)(ba) of the 1977 Act (as inserted by s. 11(2) of the 1977 Act).

Appeal allowed.

JUDGMENT of Mr. Justice Gerard Hogan delivered on the 1 ^st day of December 2021

Introduction

1 . There is, perhaps, an understandable reticence on the part of many to complain in respect of the failings of officialdom. Human nature being what is, many have learnt to their own personal cost that discretion and silence is often the better part of valour. Prompted, perhaps, by a succession of controversies affecting the public life of this State, the Oireachtas evidently considered that it would be desirable in the public interest that those who, with reasonable cause, draw attention to such perceived failings should enjoy a measure of protection against the risk of victimization in such circumstances.

2 . This is the general background to the Protected Disclosures Act 2014 (“the 2014 Act”). It seems implicit in both the Long Title to the 2014 Act and aspects of its general structure that the Oireachtas envisaged that most complaints for which protection is sought would relate to matters of general public interest. But, as we shall presently see, the actual definition of what may constitute a protected disclosure for the purposes of the 2014 Act is not so confined. Indeed, the 2014 Act also extends (albeit with certain exceptions) to complaints made in the context of private employment which are personal to the complainant, so that in effect it must be assumed that the Oireachtas considered that the disclosure of those complaints was, in general at least, also a matter of public interest. This is the background to the present appeal, so the question now presented is the question of whether a communication made by an employee in a meat plant to his supervisors on 15 ^th September 2015 constitutes a “protected disclosure” for the purposes of s. 5 of the 2014 Act. The issue arises in this way.

The background to the appeal

3 . The appellant, Mr. Baranya, is a Hungarian national who had been employed as a skilled butcher by the respondent, Rosderra Irish Meats Group Ltd. (“Rosderra”) in a meat plant since 2000. In June 2015 Mr. Baranya left the employment of Rosderra on foot of a compromise agreement so that he could either return to Hungary or take up employment opportunities in the Netherlands. A few weeks later Mr. Baranya contacted Rosderra to say that his plans had not come to fruition and he was allowed to recommence work with Rosderra on 6 ^th July 2015.

4 . Mr. Baranya's employment consisted of what was described as “scoring” a large number of carcasses on a daily basis. He contends that upon his return to work he informed his employer that he no longer wanted to do this type of work as it caused him a good deal of pain. It is the events of 15 ^th September 2015 which, however, are critical for our purposes. It is common case that on that day Mr. Baranya said that he was in pain and indicated to his supervisor that he wished for a change of role. The exact words which were uttered are, however, a matter of dispute. Did he, as Mr. Baranya claims, go further and say that he was in pain as a result of work? Or did he – as Rosderra maintain – simply say that he was in pain? I shall return presently to this point.

5 . Three days later Mr. Baranya was dismissed. Rosderra maintain that he was dismissed because he had effectively walked off the production line having not waited for management to address his request to change jobs. While Mr. Baranya maintains that he had in effect been in continuous employment for more than twelve months, he also claimed that he had been dismissed because he had made a protected disclosure by way of the communication he had made on 15 ^th September 2015.

6 . Mr. Baranya then sought to challenge his dismissal by initiating a claim for unfair dismissal before the Work Place Relations Commission on 8 ^th October 2015 under the Unfair Dismissals Acts 1977 to 2015 (“the 1977 Act”). The 1977 Act does not generally apply to employees who have less than one years' continuous service with the employer who dismissed him: see s. 2(1)(a) of the 1977 Act (as amended). There is, however, an exception where an employee who does not have this continuous service is dismissed by reason of a protected disclosure: see s. 6(2D) of the 1977 Act (as inserted by s.11(1)(c) of the 2014 Act). The question, accordingly, of whether Mr. Baranya did in fact make a protected disclosure (and, if so, whether he was dismissed by reason of this fact) also assumes importance in the context of the very application of the 1977 Act to this dismissal.

7 . This complaint was first referred to an Adjudication Officer of the Workplace Relations Commission. In her decision of 21 ^st August 2018 she rejected the complaint that the dismissal resulted wholly or mainly from having made a protected disclosure within the meaning of s. 5 of the 2014 Act. While she did find that Mr. Baranya did make complaints “in and around 18 ^th September 2015” about the pain he was experiencing while working on the production line, she drew a distinction between a grievance and a protected disclosure. The communication amounted, she found, simply to the expression of a grievance and it did not amount to a protected disclosure.

8 . Having failed before an adjudication officer, Mr. Baranya duly appealed that decision to the Labour Court in accordance with s. 8A of the 1977 Act. In its determination of 8 ^th April 2019 the Labour Court found that the communication in question did not constitute a protected disclosure “because it did not disclose any wrongdoing on the part of Rosderra” and that the communication in question “was in fact an expression of grievance and not a protected disclosure.” I propose presently to return in some detail to this aspect of the decision of the Labour Court given its crucial importance so far as this appeal is concerned. It may, however, be convenient to record at this point that in arriving at its conclusion that this was a grievance the Labour Court appears to have been influenced by the provisions of the Industrial Relations Act 1990 (Code of Practice on the...