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The recent case of Northside Security Services Company Limited by Guarantee and Mr. Patrick Dunne concerned an appeal by the employee (Mr Dunne) in respect of a previous decision by the Workplace Relations Commission which found that Mr Dunne had not been penalised under the Protected Disclosure Act 2014 (as amended). The employee had been employed by the company as a security officer since 1 January 2017 and the company had operated the security services for the Coolock development council.

The employee alleged that he was penalised after he made a protected disclosure in relation to the operation of CCTV cameras by an employee of a company, (Company X), a company which provides facility management for the Centre. He alleged that the employee in question was using the CCTV for nefarious activities. The employee alleged that as a result of this complaint or disclosure to the company, that he was in fear of the employee in question and that the company did nothing to protect him. As a result he complained that he was being penalised for having made a protected disclosure.

The company contended that the employee had not made a protected disclosure and that the complaint/report submitted by the employee did not meet the definition of a protected disclosure under the Protected Disclosures Act 2014 (as amended). The company also stated that it had reported the matter to Company X and had offered to move the employee to another building on the campus but he refused. Company X dealt with the matter internally and the employee in question was suspended. The employee Mr Dunne was moved to a different building for his safety and welfare and he subsequently went on sick leave.

“Protected Disclosure”

The Company argued that the alleged disclosure did not satisfy the definition of a “protected disclosure” as defined by Section 5(5) of the Act which provides “………..A matter is not a relevant wrongdoing if it is a matter which it is the function of the worker or the worker’s employer to detect, investigate or prosecute and does not consist of or involve an act or omission on the part of the employer”.

The employee argued that it was part of the employee’s duties and obligations as a Security Officer to report suspicious activities of any person or employee attending the premises hence the disclosure of such information was a function of his job. 

The employee representative argued that the employee had made a protected disclosure within the meaning of the Act and that they in fact were raised by way of special meetings with management. Counsel also stated that it was not within the employee’s normal duties as a Security Officer to have to deal with situations which involved such nefarious deeds and he should not have been exposed to such matters. He also argued that the employee in question had to go through the stress of reviewing the activities of the employee of Company X and this had caused him severe stress.

Findings and Conclusions of the Court

The Labour Court stated that in the first instance it had to observe whether a protected disclosure had in fact been made before considering whether penalisation had occurred. It considered a number of definitions including that of a “protected disclosure” namely.………….a disclosure of relevant information (whether before or after the date of the passing of this Act) made by a worker in the manner specified in section 6 , 7 , 8 , 9 or 10 “. It noted the definition of relevant information as meaning if ……….(a) in the reasonable belief of the worker, it tends to show one or more relevant wrongdoings, and (b) it came to the attention of the worker in connection with the worker’s employment. 

The Court then proceeded to list examples of what was meant by relevant wrongdoings under the Act and noted that motivation was irrelevant in determining this. It also referred to the recent High Court decision of John Clarke v CGI Food Services Limited and CGI Holding Limited [2020] IEHC 368 which demonstrated the broad scope of the definition of ‘protected disclosures’ under the Act. It noted that the case provided clarity on the interpretation of Section 5(5)of the Act and highlighted the importance of the wrongdoing on the part of the employer to this exemption. The Court also observed that Humphreys J. made it clear that this exemption only applies where the matter does not consist of or involve an act or omission on the part of the employer.

The Court observed that from a plain reading of Section 5(5) of the Act and drawing on the meaning of “Security Officer” in S. I. no. 231 of 2017, monitoring a CCTV system was a primary function of the employee, as a Security Officer, and this included the reporting of any wrongdoing. It noted:

In so finding, the Court is satisfied that the misuse of a CCTV by a non-security person for nefarious means is firmly within the remit of a Security Officer. Taking the first limb of Section 5(5) into account, the Court is satisfied that the protected disclosure is not a relevant wrongdoing, at it is the function of the worker or the worker’s employer to detect, investigate or prosecute”.

The court further observed Moving to the second limb of the section, even if it is within the remit of the Complainant’s role to detect the misuse of the CCTV, the Court is satisfied that nefarious deeds perpetrated by a third party without the Respondent’s knowledge or within its control, could not be matters related to an alleged act or omission by the employer. The Respondent had no control over the CCTV or the employee in question. Counsel for the Complainant told the Court that the Complainant had been aware of the misuse of the CCTV system for ten years yet did not report it until April 2019″.

Determination

The Court concluded “Based on the facts as found above the Court is satisfied that the wrongdoing reported by the Complainant in pursuance of his duties as a Security Officer was not a “protected act” within the meaning of the Act”.  The employee’s case failed.

Case Lesson

It should be remembered by employers and employees alike,  that at the outset the employee must make a disclosure of “relevant information” which came to their attention during the course of their employment. Relevant information does not include information/duties which is part of a worker’s terms and conditions. In this case part of the employee’s role was to detect, investigate or prosecute and hence the alleged wrongdoing reported was not a protected act.