Court dismisses application for time extension under Protected Disclosures Act 2014 due to excessive delay and lack of arguable case.

Record No. 2808/2020 AN CHÚIRT CHUARDA THE CIRCUIT COURT DUBLIN CIRCUIT COUNTY OF THE CITY OF DUBLIN IN THE MATTER OF SECTION 11 OF THE PROTECTED DISCLOSURES ACT 2014

BETWEEN:

PAUL CULLEN APPLICANT AND KILTERNAN CEMETERY PARK LIMITED RESPONDENT JUDGMENT OF HIS HONOUR JUDGE JOHN O’CONNOR DELIVERED ON THE 16TH DAY OF JULY 2020 AT COURT 28, FOUR COURTS, INNS QUAY, DUBLIN 7

Introduction

1. Section 11(2) and Schedule 1 of the Protected Disclosures Act 2014 created a statutory mechanism which permits employees who contend that they have been dismissed wholly or mainly by reason of their having made a protected disclosure to seek interim relief from the Circuit Court pending the determination of their unfair dismissal claim. It further provided that the Circuit Court shall not entertain an application for interim relief unless it is presented to the court before the end of the period of 21 days immediately following the date of dismissal (whether before, on or after that date) or such longer period as the court may allow.

2. Both parties acknowledge that proceedings were not commenced within 21 days of the date of termination of the applicant’s employment with the respondent. The employment ceased on the 3rd of February 2020. The proceedings before the court were commenced on the 14th of May 2020.

3. The applicant requests an order from the court extending the time for making the application pursuant to s.11 (2) of the Protected Disclosures Act 2014. The applicant further requires a declaration under s.11 of the Protected Disclosures Act 2014 that the applicant’s contract of employment with the respondent continues in force pending the resolution and/or conclusion of the applicant’s claim against the respondent pursuant to the Unfair Dismissals Acts 1977-2015.

Background

4. The claim for unfair dismissal arises from the termination of the applicant’s employment with the respondent as General Manager of Kilternan Cemetery Park, which is owned and operated by the respondent. The applicant commenced employment with the respondent on the 25th of January 2016. The applicant was out of work for two weeks in October 2018 and a further seven weeks in October/November 2019 due to illness. When he returned to work on the 25th of November 2019, the applicant’s doctor recommended that his return to work should be on a phased basis. The applicant and the respondent were unable to agree on a working time frame. The applicant then requested the respondent to consider offering him an exit package. On the 28th of November 2019, the applicant and respondent discussed a without prejudice financial package but did not reach an agreement.

The Applicant’s Case

5. On the 2nd of December 2019, the applicant and respondent had a further meeting to discuss a possible exit package. In the course of this meeting, the applicant stated that he brought to the respondent’s representative’s attention, concerns he had concerning what he believed were irregularities concerning the planning status of the area known as the Island Garden and/or ash burial area in the respondent’s cemetery.

6. The applicant and respondent engaged in further meetings in January 2020. The net effect is that the applicant requested an exit package. In contrast, the applicant contends that the respondent wished to discuss a possible redundancy. However, a redundancy package was not acceptable to the applicant.

7. By letter dated the 13th of January 2020, sent by email on the 14th of January 2020, the applicant stated he made a written protected disclosure in relation to what he believed was a planning irregularity concerning the cemetery. The applicant contends that an employee is not obliged to mark or label in his disclosure that it is a protected disclosure for the Protected Disclosures Act 2014 to apply. Furthermore, he submits that the motivation of the employee is irrelevant in determining whether a disclosure is a protected disclosure or not.

8. The respondent replied on the 17th of January 2020, stating that the possible redundancy was not connected to the applicant's protected disclosure but gave an undertaking to investigate the issues raised. On the 3rd of February 2020, the respondent sought to make the applicant redundant.

9. The applicant referred the court to the decision of Comerford J in Mick Dougan and Sean Clark v Lifeline Ambulances Ltd [2018] 29 E.L.R. 210. The learned judge held that in order for the Circuit Court to grant an application for interim relief under the Protected Disclosures Act 2014, the test to be applied is: did the employee have “substantial grounds” for claiming the connection between the dismissal and the protected disclosure?

Therefore, it is not necessary for a court to find that an employee was dismissed for making a protected disclosure.

10. Comerford J in determining whether there were substantial grounds referred to the

decision of Carroll J in McNamara v. an Bord Pleanála (No. 2) [1996] IEHC 60 where she stated at para 20:

“In order for a ground to be substantial it must be reasonable, it must be arguable, it must be weighty. It must not be trivial or tenuous. However, I am not concerned with trying to ascertain what the eventual result would be. I believe I should go no further than satisfy myself that the grounds are “substantial”. A ground that does not stand any chance of being sustained (for example, where the point has already been decided in another case) could not be said to be substantial”.

11. The applicant submitted “that it was reasonable to conclude that the decision to dismiss the applicant was inextricably linked to his raising of the issues relating to the planning permission of the cemetery”.

The Respondent’s Reply

12. The respondent acknowledged that the applicant commenced employment as “General Manager” with the respondent company in January 2016. However, it contends that the applicant’s redundancy took place at the end of a range of cost-cutting initiatives of which he was fully aware. Also submitted was that the respondent’s board had a key meeting in August 2019 when it was decided that they did not need a full-time general manager.

Furthermore, they stated, that on the 2nd of December 2019, they offered the applicant an enhanced redundancy package which he declined. They further stated, that the applicant then threatened that he would “blow the whistle and ‘make a protected disclosure about purported planning irregularities’ if he did not receive ‘multiples’ of the package on offer”.

13. The applicant submits that the respondent was informed that his work role as a general manager was at risk of redundancy on the 10th of January 2020. The respondent accepts that the applicant made a protected disclosure on the 14th of January 2020. It also submits that after a consultation process, during which alternatives were considered, the applicant was made redundant, and that his employment was terminated on the 3rd of February 2020.

14. The respondent contends that the applicant’s belief in regards to the protected disclosure was neither reasonable nor sincere and that the information disclosed by the applicant did not amount to relevant wrongdoing. In this latter regard, it submits that it was the applicant’s role as general manager to ensure compliance with all relevant legislative requirements (which included planning law issues) concerning the burial of human remains. They submit that the applicant should have brought his concerns to the board’s attention during the course of his employment. In this regard, they referred to s.5 (5) of the Protected Disclosures Act 2014 which states:

“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.”

15. The respondent denied that the applicant made a protected disclosure on 2nd December 2019. Counsel furnished a number of authorities to the court to state that a disclosure must be a disclosure of information and not merely a bare allegation or an expression of concern:

• Kierans, L., 2019. An empirical study of the purpose of the Irish Protected Disclosures Act 2014;

• A Commercialisation Specialist v A Government Agency [ADJ-00005583];

• Employment Law 2nd edition 2017 Ailbhe Murphy, Maeve Regan Editor(s);

• Cavendish Munro Professional Risks Management Ltd v Geduld, UK EAT/195/09.

16. The respondent also referred the court to the case Baranya v Rosderra Irish Meat Group [2020] IEHC 56. In this case, O’ Regan J held that there is a spectrum, where, at one extreme exists a grievance and the other a protected disclosure. However, there was also a possibility for the two to overlap. O’ Regan J further stated at para 30,

“Although the concept of a protected disclosure is effectively a term of art as defined by the 2014 Act, the word ‘disclose’ has the ordinary meaning of to ‘reveal’ or ‘make known’.”

The respondent submitted that for the applicant to state that there were “planning irregularities” is a general allegation and does not satisfy the requirement of “relevant information” as required by the Protected Disclosures Act 2014.

17. The respondent also contends that correspondence from the applicant acknowledged that he had not made a protected disclosure on 2nd December 2019. The matter is disputed between the parties.

18. In relation to the “protected disclosure” on the 14th January 2020, the respondent submitted that the applicant’s belief and disclosure were neither reasonable nor sincere and that the information did not amount to relevant wrongdoing as it was part of his role as outlined above.

19. The respondent also referred to the case of Mick Dougan (Applicant) and Sean Clark (Applicant) v Lifeline Ambulances Ltd (Respondent) [2018] 29 E.L.R 210 where Comerford J held it is not enough that the protected disclosure contributed to the dismissal or was a factor in the employer’s making of the decision. It has to go further and result wholly or mainly from the protected disclosure. In ascertaining the test as to whether the dismissal results wholly or mainly from the protected disclosure Comerford J said at para 214:

“…[the court has] to identify grounds which would allow one to contend that the cause of the dismissal was the protected disclosure and if those grounds identified are going to be grounds that are wholly or mainly responsible for the dismissal, then I have to go a bit further and say they are substantial grounds”.

The respondent submits there were no substantial grounds as outlined by Comerford J.

Preliminary Issue as to the Application for Extension of Time The Applicant’s Submission

20. The applicant submitted two separate rationales for the delay in bringing his application to the court for interim relief. The first reason was that he was awaiting the outcome of his application for new employment. In this regard, he submitted it would have been inappropriate for him to have applied to this court for interim relief while an application for alternative employment was pending. He submitted that he had reached the final stage of the recruitment process for “a new job” but was not successful. He contends that it was his duty to mitigate his loss by seeking alternative employment. He further submits that if he had been successful in his new job application, it would have been an abuse of process to request the court to continue his contract of employment with the respondent when he was in the employment of another employer.

21. The second reason for the delay in the application to the court is that the applicant was waiting for the outcome of the respondent’s appeal process in relation to the termination of his employment on the 3rd of February 2020. He submitted that it was appropriate and responsible for him to engage in the appeal process. Therefore, he wished to ascertain the outcome of the internal appeal process before embarking on an application for interim relief to the court. In this regard, he states that it would be fair and just for the court to extend the time to commence the 21-day period at the date that the internal appeal process was terminated.

The Respondent’s Reply

22. The respondent submits that the wording of Section 11(1)(2) of the Protected Disclosures Act 2014 prescribes that the “Circuit Court shall not entertain an application for interim relief unless it is presented to the court before the end of the period of 21 days immediately following the date of dismissal (whether before, on or after this date) or such longer period as the court may allow".

Respondent’s counsel submits that the wording of the section is akin to that contained in the Rules of the Superior Courts (Statutory Applications and Appeals) S.I. 14 of 2007.

23. The respondent submits that a good reason for the delay should be furnished to the court by the applicant before a court entertains an application for intern relief. The phrase ‘good reason’ was considered in the High Court in Donal O’Donnell v Dun Laoghaire Corporation [1991] 1 ILRM wherein Costello J stated:

“The phrase “good reason” is one of wide import which it would be futile to attempt to define precisely. However, in considering whether or not there are good reasons for extending the time I think it is clear that the test must be an objective one and the court should not extend time merely because an aggrieved plaintiff believed that he or she was justified in delaying the institution of proceedings. What the Plaintiff has to show is that there are reasons which both explain the delay and afford a justifiable excuse for the delay”.

This reasoning has subsequently been approved by Denham J and Fennelly J in Dekra Eireann Teo v Minister for the Environment [2003] 2 IR 270.

24. The respondent submits that as the application for interim relief to the court was not made for approximately three and a half months after his employment was terminated, the onus is on the applicant to explain why he did not make the application for interim relief at an earlier stage, rather than keeping all his options open.

The Law

25. The Protected Disclosures Act 2014 is a very important piece of legislation designed to address wrongdoing in the workplace. It provides redress for employees who are dismissed or otherwise penalised for having reported possible wrongdoing in the workplace. Comerford J in Mick Dougan and Sean Clark v Lifeline Ambulances Ltd [2018]

29 E.L.R 210 has cogently set out the test to be applied by the Circuit Court in granting an application for interim relief.

26. In the Motion before this court, the applicant first requests an order extending the time for making the application pursuant to Section 11(2) of the Protected Disclosures Act 2014. It is clear from the legislation that the twenty-one days runs from the date that the

decision to terminate the employment is made. The question therefore for the court is not when does the 21 days commence, but, what are the grounds that would allow a court to extend the period beyond the 21 days?

27. The court is not aware of any case law regarding what constitutes sufficient reasons for granting an extension of time beyond the 21 days set out in the legislation. However, the court is aware that the issue of extension of time for judicial review is a frequent one for planning appeals. In this regard, the court has noted instructive guidelines in cases such as:

• Kelly v Leitrim County Council [2005] 2 IR 1;

• Irish Skydiving Club Ltd. v An Bord Pleanála [2016] IEHC 448;

• Sweetman v An Bord Pleanála and other’s [2017] IEHC 46;

• SC SYM Fotovoltaic Energy SRL v Mayo County Council and others [2018] IEHC 20.

The issue is also one that frequently arises in landlord and tenant cases regarding the tenant’s application for an extension of time in regards to a renewal of a lease.

28. However, caution needs to be exercised in respect of Planning and Landlord and Tenant law precedents. They are not directly analogous. Firstly, the issue of employer and employee relationship is a unique one where an employee usually does not have equal bargaining power with an employer. Secondly, there is frequently a public benefit in making a protected disclosure and, thirdly, the period of 21 days is a short time to make an application to the court.

29. At the outset, each case must be considered on its own facts. The court will assess carefully and critically any explanation put forward on behalf of an applicant. The test is an objective test to be judged by what is fair and reasonable considering all the circumstances of the case.

30. The following is a non-exhaustive list of factors which may require careful consideration by a court in deciding whether to extend the time for bringing an application for interim relief:

1. The nature of the disclosure involved;

2. The nature of the dismissal involved;

3. The length of time involved since the expiration of the 21 days;

4. The capacity and ability of the applicant to process an application to the court;

5. The nature of the employer and employee relationship;

6. The extent of legal advice afforded to an applicant;

7. The extent to which the applicant may be able to explain the delay;

8. The merits of the case and the issue as to whether the applicant has established an arguable case that there are substantial grounds for contending that there is a link between the protected disclosure and the dismissal to the extent that the dismissal resulted wholly or mainly from the protected disclosure;

9. The prejudice that any party might suffer by reason of the delay in making the application;

10. The extent to which in all the circumstances a court will deem it just and equitable to grant an extension of time to an applicant.

Applying the law to the facts

31. In this case, the applicant made an application to the court for interim relief, three and half months after he was dismissed. It is acknowledged that a month prior to his dismissal that he threatened to do so unless his exit package was enhanced. However, a threat to an employer is not a protected disclosure.

32. The nature of the disclosure was one in which he, in his role as General Manager should have taken active steps to address when in his employment, if he felt it was a genuine cause for concern.

33. The applicant had engaged his solicitors to afford him legal advice, some eighteen months prior to his dismissal and he is therefore deemed to be fully aware of the law. The applicant attempted to use the protected disclosure as a sword of Damocles over his employer to enhance his negotiating stance with his former employer. He was entitled to do so. However, it is not a good reason as to why this court should grant an extension of time.

34. I do not accept the reasons for the delay submitted by the applicant as objective reasons for granting an extension of time for interim relief as envisaged by the Act. The period of three and a half months is, in this case, an excessive time frame considering all the other circumstances.

35. Finally, I do not accept the applicant has established an arguable case, three and half months after ceasing his employment that there are substantial grounds for contending that there is a link between the protected disclosure and the dismissal to the extent that the dismissal resulted wholly or mainly from the protected disclosure.

36. Accordingly, I refuse the applicant’s request for an order extending the time for making the application pursuant to section 11(2) of the Protected Disclosures Act 2014.