Supreme Court allows appeal from High Court, and sets aside a determination that the Labour Court had not erred in finding that a complaint concerning back pain experienced by a butcher dismissed by a meat plant amounted to a 'protected disclosure', on the grounds that: (a) a published 'code of practice' concerning protected disclosures erroneously stated that personal complaints fell outside the relevant term; and (b) the Court had failed to make sufficiently clear findings of fact concerning what had been said by the employee about suffering from pain.
Hogan J (nem diss): Employment law - protected disclosures - Protected Disclosures Act 2014 - whistleblowers - whether protected disclosures limited to matters in the public interest - employment as butcher - meat plant - work at 'scoring' carcasses - request for different role in meat plant - complaint that work was causing him pain - dismissal three days following request - claim for unfair dismissal - whether discussion of pain amounted to a 'protected disclosure' - s. 5 of the 2014 Act - definition of 'protected disclosure' - gap in employment within 12 months prior to dismissal - application to Adjudication Officer - appeal to Labour Court - appeal to High Court - leapfrog appeal to Supreme Court - Industrial Relations Act 1990 (Code of Practice on Protected Disclosure (Declaration) Order 2015 (SI No. 464 of 2015).
"Yet there seems no reason at all why a complaint made by an employee regarding an alleged failure on the part of an employer to comply with his or her statutory obligations regarding the mode and method of payment of wages under the Payment of Wages Act 1991 could not also be regarded – at least in principle – as a protected disclosure for the purposes of s. 5(3)(b) of the 2014 Act. To that extent, therefore, it might be said that s. 5(3)(b) did not achieve the objective it sought to achieve by excluding only contractual complaints which are personal to the employee concerned and it is, to that extent, anomalous."
"It is perfectly clear from these words that the complaint does not have to relate to the health or safety of other employees or third parties: a complaint made by an employee that his or her own personal health or safety is endangered by workplace practices is clearly within the remit of the sub-section. Nor does the conduct in question necessarily have to amount to a breach of any legal obligation (although it would generally probably do so): 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 in the extended (and slightly artificial) sense in which that term has been used by s. 5(2) and s. 5(3) of the 2014 Act. 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 summary, therefore, I would allow the appeal because, first, the Labour Court applied
the 2015 Code of Practice 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, because the Court failed to make sufficiently clear and precise findings of fact as to what exactly was said."
Charleton J (concurring): Common perceptions of what a whistleblower was.
"But plainness of wording within legislation and provisions excluding in the case of contract personal considerations which are not repeated for a general statement as to disclosing issues on health and safety specifically related to “any individual” put the insertion of a public interest motive or requirement within the realm of what is beyond the judicial construction of enactments. Hence, while Hogan J’s analysis is unassailably correct, the thrust of the 2014 Act does not conform to what might ordinarily be considered to define a whistleblower as a public-minded individual deserving of special protection."