In the case of Tibor Baranya v Rosderra Irish Meats Group Limited the Supreme Court was asked on appeal in 2021 to consider whether a communication made by an employee in a meat plant to his supervisors constituted a “protected disclosure” for the purposes of Section 5 of the Protected Disclosures Act 2014 (as amended).
The appellant employee, Mr. Baranya, was a Hungarian national who had been employed as a skilled butcher by the respondent, Rosderra Irish Meats Group Ltd. in a meat plant since 2000. In 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 in July 2015.
His work included “scoring” a large number of carcasses on a daily basis. 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. In September 2015, Mr. Baranya said that he was in pain and indicated to his supervisor that he wished for a change of role. The parties disagreed as to the exact words which were discussed on the day however three days later Mr. Baranya was dismissed.
Rosderra maintained that Mr Baranya was dismissed because he had effectively walked off the production line having not waited for management to address his request to change jobs. Mr. Baranya however claimed that he had been dismissed because he had made a protected disclosure by way of the communication he had made in September 2015.
Workplace Relations Commission
Mr. Baranya sought to challenge his dismissal by initiating a claim for unfair dismissal before the Work Place Relations Commission in October 2015 under the Unfair Dismissals Acts 1977 to 2015 (“the 1977 Act”). The question arose of whether Mr. Baranya did in fact make a protected disclosure and, if so, whether he was dismissed by reason of this fact. It was ultimately found that the concerns raised by Mr Baranya amounted to an expression of a grievance and did not amount to a protected disclosure. Mr Baranya then appealed the WRC decision to the Labour Court.
On 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.” In reaching the conclusion, the Labour Court considered the provisions of the Industrial Relations Act 1990 (Code of Practice on the Protected Disclosures Act 2014) (Declaration) Order 2021 (SI No. 464 of 2015). Mr Baranya then appealed to the High Court on a point of law.
On appeal to the High Court by way of judgement delivered on 13th February 2020, the High Court found that Mr. Barany, had failed to establish any error of law on the part of the Labour Court. Mr Baranya then sought leave to appeal to the Supreme Court. which was granted in July 2021.
The Supreme Court considered the full background to the case.
Mr. Baranya continued to maintain that on various dates, and especially on 15th and 18th September 2015, he made a protected disclosure to Rosderra in relation to concerns he had for his health, safety and welfare at work as a result of injuries he sustained in the course of his employment and that he was dismissed by reason of that disclosure.
Rosderra contended that in or around May 2015 Mr. Baranya advised the Human Resources Manager that he wished to resign, as he intended on exploring new employment opportunities in the Netherlands, but that he wanted compensation for an alleged injury in February 2013. He agreed to a payment of €4,500 in full and final settlement of all claims arising from his employment. In July 2015, Mr Baranya sought to return to work amd Rosderra contended that he could return on a 12 week contract. Rosderra denied that any protected disclosure claim had been made or that it had any bearing on the company decision to dismiss him.
The Supreme Court observed that the Workplace Relations Commision had held that the communication was a “grievance” rather than a protected disclosure and that in any case Mr. Baranya was dismissed for “walking off the line”.
The Labour Court found that the communication by Mr. Baranya in this case “related to the fact that he wanted to change roles as he was in pain” and that the “communication did not disclose any wrongdoing on the part of the Respondent” and that the communication appeared to be an expression of a grievance and not a protected disclosure.
The Supreme Court considered the decision of the High Court  IEHC 56 20. Mr. Baranya had set out six grounds of appeal:
Ground of Appeal to the High Court on a Point of Law
(1) There was an error of law by the Labour Court, reading into s. 5 of the 2014 Act a requirement that a protected disclosure state an allegation of a relevant wrongdoing on the part of the employer.
(2) The Labour Court erred by determining that the appellant’s communication was a grievance rather than a protected disclosure.
(3) The Labour Court erred in interpreting Statutory Instrument 464/2015 (the SI) by determining that the SI prevented the subject matter from being a protected disclosure, thereby [accepting the] ability of the SI to amend the 2014 Act.
(4) The Labour Court failed to consider the full facts of the evidence given. (5) The Labour Court erred in its failure to consider the full remit of s. 5(3) of the 2014 Act.
(6) The Labour Court erred in law by its failure to have any due regard to the fact that the appellant sought out the Health and Safety Officer of the respondent to raise his concerns for his own health and safety.
The High Court held that Mr. Baranya had failed to establish any error on the part of the Labour Court. She concluded in dealing with the various grounds of appeal set out in the notice of motion that
(1) The appellant has failed to demonstrate that the Labour Court misread or misinterpreted s.5 of the 2014 Act by requiring the appellant to state an allegation of a relevant wrongdoing. Section 5(2) defines relevant information as information in the reasonable belief of the worker, tends to show one or more of the relevant wrongdoings. That some information in the relevant communication, must attribute some act or omission, on the part of the respondent, that the appellant might reasonably believe tends to show one or more of the relevant wrongdoings is clearly necessary. In the absence of any asserted act or omission the concept of relevant information is not fulfilled in the instant communication as found by the Labour Court.
(2) The Labour Court did not determine that the appellant’s communication was a grievance “rather than” a protected disclosure. It stated that the communication was a grievance and not a protected disclosure. I accept that if the words “rather than” had been included this would possibly demonstrate a view on the part of the Labour Court that a grievance can never be a protected disclosure.
(3) The appellant has failed to demonstrate that the Labour Court in fact determined that the SI had an ability of amending the 2014 Act whether explicitly or implicitly.
(4) It seems to me abundantly clear that the Labour Court did in fact consider the initial asserted communication that the appellant made, however, having heard oral evidence and having regard to the documents before the Labour Court, the Labour Court found 9 that the communication made was more circumspect than asserted by the appellant and did not reveal any act or omission on the part of the respondent that might be considered any form of wrongdoing.
(5) The Labour Court specifically identified the entirety of s.5 of the 2014 Act including at para. (d), and there is no evidence adduced therefore by the appellant to suggest that the Labour Court failed to consider the full remit of s.5(3).
(6) The nature of the communication found to have been made by the appellant was that he wanted to change roles as he was in pain. The appellant has not demonstrated any error of law on the part of the Labour Court in placing significance on the fact that the appellant stated that he sought out the Health and Safety Officer of the respondent. If the appellant had been found to state, as was asserted by him, the cause of his pain was due to the work he had to perform, the appellant would not have been confined to making this assertion to the Health and Safety Officer only, but rather it would appear sufficient to make it some person for the purposes of drawing the assertion to the attention of his employer.
Supreme Court Decision
The Supreme Court noted that “the first question which arises is whether a complaint made by an employee to his or her employer about workplace safety is capable of being regarded as a protected disclosure for the purposes of the 2014 Act” and that the concept of “relevant wrongdoings” in s. 5(3) of the 2014 Act merited further consideration.
It noted that “….many complaints made by employees which are entirely personal to them are nonetheless capable of being regarded as protected disclosures for the purposes of the 2014 Act. This is also true of complaints regarding workplace safety under s. 5(3)(d)” and that “…….it is sufficient that the employee complains that his or health or safety has been or is being or is likely to be endangered by reason of workplace practices, as this amounts to an allegation of “wrongdoing” on the part of the employer….It follows that a complaint made by an employee that his or her own personal health was being affected by being required to work in a particular manner or in respect of a particular task can, in principle, amount to a protected disclosure”.
In respect of the Labour Court decision it asked two questions, namely “….what was the extent to which the Court was influenced by the terms of the 2015 Code of Practice” and “Second…..what precisely were the facts found by the Labour Court itself”.
The Supreme Court observed that while the Labour Court was empowered to have regard to the terms of the 2015 Code of Practice, “the difficulty in the present case is that the 2015 Code does not accurately reflect the terms of what the 2014 Act actually says………………specifically, the 2015 Code introduces a distinction between “a grievance” and “a protected disclosure”, even though no such distinction is drawn by the 2014 Act itself, which makes no reference at all to the concept of a personal grievance”.
The Supreme Court further noted “……it is clear that purely personal complaints in relation to the issues of workplace health or safety can in fact be regarded as coming within the rubric of protected disclosures for the purposes of s.5(2) and s. 5(3) of the 2014 Act…………………it is clear that the Labour Court relied on a code of practice which was, in at least two material respects, clearly wrong and (unfortunately) quite misleading. All of this led the Court to reach the conclusion that a purely personal complaint regarding workplace health or safety essentially fell outside the scope of the 2014 Act. The Court accordingly fell into legal error……”.
The Supreme Court also looked at the Labour Court’s finding of fact and stated “….I cannot agree that there was a sufficiently clear finding of fact on the part of the Labour Court in respect of these matters. The failure on the part of the Labour Court to make the appropriate findings of fact can only be regarded as an error of law on its part”.
The Supreme Court remitted or sent back the case to the Labour Court so that “it can determine afresh whether the utterances of Mr. Baranya amounted to a “protected disclosure” for the purposes of the 2014 Act” and that it would be up to the Labour 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……”.
The Supreme Court raises some interesting questions around general workplace grievances and whether a complaint in respect of treatment at work could now come within the definition of a protected disclosure.
The Protected Disclosures Amendment Bill is expected in early 2022 and it remains to be seen if it will deal with this hot topic.