High Court allows appeal granting interim relief for unfair dismissal linked to protected disclosure under 2014 Act.

THE HIGH COURT [2025] IEHC 366 RECORD NO. CA 2024/306 BETWEEN GEORGE CALIN BREBAN APPELLANT AND

CATCH SECURITY SYSTEMS LIMITED RESPONDENT

JUDGMENT ex temp of Ms. Justice Denise Brett delivered on the 13th day of March 2025

The appeal:

1. By Notice of Appeal dated 4th December 2024, the appellant appeals the decision of the Circuit Court made on 3rd December 2024. That Court had refused the appellant interim relief pending determination of a claim brought by him to the Workplace Relations Commission (“WRC”) for redress for what he says was his unfair dismissal by virtue of having made a protected disclosure within the meaning of the Protected Disclosures Act 2014 (“the 2014 Act”).

Background facts, in brief:

2. While a number of matters are strongly in contention between the parties, and await determination by the WRC, a minimal outline of facts is sufficient to set the scene.

3. The appellant was employed by the respondent company on 20th September 2023 as an installation/security systems engineer. His exhibited employment contract (accepted as the correct one) cites his duties as installing, servicing and maintaining client security systems. The employment contract also stipulated that the plaintiff undergo a one-year probationary period.

4. The incidents most relevant to the dispute centre on work which the respondent employer was called in to do by a client pub in Crosshaven, Co. Cork. In April 2024 there was an emergency call out to the respondent to fix a fire alarm which was sounding, as a fire inspector from Cork County Council was due for an inspection of the premises shortly that day. The appellant attended and fixed that job. Consequent upon that attendance, works were directed by the fire officer on the fire safety system in the pub premises and the defendant employer was contracted by the pub owner to carry out those remedial works. A third party independent contractor, Champion Fire, inspected those works and ultimately, at some point, provided the necessary fire certificate (“the fire consultant”).

5. The remedial works were carried out on 2nd May and involved the plaintiff moving from one job with which he was already engaged to assist a colleague with the remedial works in the pub. The appellant propounds a particular knowledge and experience in fire safety systems. In the course of attending to carrying out such remedial works, the plaintiff says he observed a fire safety alarm panel in respect of an apartment above the pub premises which he believed was being let as an Airbnb (called “Zone 4”) but which was not connected to the general fire protection systems in place in the pub below. As such, he believed there was a significant fire safety issue for the apartment above. He says he reported it to his colleague on site at the time and ultimately, to his employer (the respondent), by e-mail on 8th May 2024.

6. This e-mail is the disclosure which the appellant asserts is a protected disclosure within the meaning of the 2014 Act.

7. In essence, it sets out the appellant’s belief that a fire certificate might imminently be issued in respect of the fire detection and alarm systems which he described as being in a dangerous state as it did not cover the apartment, such that there would be no alarm the in the event of a fire. He indicated his belief that:

“should anyone decide to issue any sort of certification stating the fire detection and alarm system at the Oar Bar complies with I.S. 3218:2013+A1:2019, they should be made fully aware of the all of the above as well as all provisions of the Fire Services Act 1981 and 2003, given that the issuing of a false document, they would do so at their own peril.”

8. Thereafter, according to the appellant, work equipment was taken from him and no further fire related jobs were assigned to him.

9. According to the managing director of the respondent company, Ian Mullane, notwithstanding that the fire officer had raised no difficulty or recommendation in respect of Zone 4, the respondent considered what he described as the appellant’s “observations”, discussed them with the fire consultant and the premises owner, inspected the premises further, and established that no further works were required.

10. Without preamble or reason, the appellant was called to a meeting with Mr Mullane on the 5th of July 2024 and his employment was terminated. It is the respondent’s position that this was unconnected with any concerns raised by the appellant arising from the Crosshaven job, but rather arose because the employer “had received multiple complaints regarding the plaintiff’s performance and interactions with customers in June 2024”, and one complaint in July 2024 relating to refusal to rectify customer work.

11. Despite request, the appellant has received no details of such complaints. He has been out of work since.

12. The respondent further avers that, on the 29th of October 2024, after the appellant’s employment termination, the Cork County Council fire officer re-attended the pub premises, together with engineers from the respondent, and no issues or concerns were identified. The respondent again confirmed that no remedial works had been carried out.

13. The above is a brief summary only. I acknowledge that there are further details which both parties advance and it is clear to the Court that there is a significant dispute in respect of key factual matters. However, these factual matters are to be determined in the appellant’s claim before the WRC. I do not wish to trespass on factual or legal issues which ought first be determined before that body. I consider issues solely for the purposes of this Court’s determination, i.e., by way of an appeal of an Order of the Circuit Court, is the appellant entitled to interim relief as set out in Schedule 1 to s.11 of the 2014 Act (“s.11 Schedule”), pending determination of his claim before the WRC?

The Court was advised that a hearing date in this regard is listed for the 31st March such that the period is prima facie time definable between 12th July 2024 and 31st March 2025, assuming the WRC hearing goes ahead and all matters are concluded on that day. The 2014 Act:

14. Relevant provisions of the 2014 Act include Part 2 which deals with protected disclosures. S.5(1) defines a protected disclosure as “a disclosure of relevant information […] made by a worker in the manner […] [set out in the Act]”. In s.5(2)

“relevant information” is defined as information if “in the reasonable belief of the worker, it tends to show one or more relevant wrongdoings, and it came to the attention of the worker in a work-related context.”

15. There is no dispute that the disclosure in this application, which is said to constitute the protected disclosure within the meaning of the 2014 Act, came to the attention of the appellant in a work-related context. The respondent questioned the reasonable belief of the appellant, but the real issue highlighted was whether it was a consideration of “relevant wrongdoing”. The respondent relied upon s.5(5) of the Act in particular, which sets out a matter which does not amount to a “relevant wrongdoing” – i.e., “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. ”

16. Of note, s.5(8) sets out that: “[i]n proceedings involving an issue as to whether a disclosure is a protected disclosure it shall be presumed, until the contrary is proved, that it is.”

17. Part 3 of the 2014 Act deals with protections, with s.11(2) providing for an application to be made to the Circuit Court for interim relief where a claim is brought for unfair dismissal arising from a protected disclosure. The s.11 Schedule contains the provisions for such interim relief pending determination of the claim, the first two headings of which deal with: (i) application for interim relief and the (ii) procedure on hearing of application and making of order.

18. The most relevant sections of the s.11 Schedule for this appeal are:

“Section 11.

Application for interim relief.

1. (1) An employee who claims to have been dismissed by the employee’s employer wholly or mainly for having made a protected disclosure may apply to the Circuit Court for interim relief.

(2) 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.

(3) The Court shall determine the application for interim relief as soon as practicable.

(4) The employee shall give the employer prior written notice of intention to make the application for interim relief.

(5) The Court shall not exercise any power it has of postponing the hearing of an application for interim relief except where it is satisfied that special circumstances exist which justify it in doing so.

Procedure on hearing of application and making of order.

2. (1) This paragraph applies where, on hearing an employee’s application for interim relief, it appears to the Court that it is likely that there are substantial grounds for contending that dismissal results wholly or mainly from the employee having made a protected disclosure.

[…]

(9) If on the hearing of an application for interim relief the employer—

(a) fails to attend before the Court, or

(b) states an unwillingness either to reinstate or to re-engage the employee as mentioned in subparagraph (3), the Court shall make an order for the continuation of the employee’s contract of employment.”

19. The test applicable to an application for interim relief is set out in s.2(1) of the s.11 Schedule i.e., where it appears to the Court “that it is likely there are substantial grounds for contending that dismissal results wholly or mainly from the employee having made a protected disclosure.”

Procedural history:

20. By way of notice of motion dated the 12th of July 2024, returnable to Cork Circuit Court on the 25th of July 2024, the appellant sought reinstatement or continuation of his contract of employment, or payment in lieu. The motion was accompanied by an affidavit of the appellant sworn on 15th of July 2024, the substantive part of which comprised a single paragraph: “I say that I have made a protected disclosure and I have been penalised wholly or mainly for making a protected disclosure”. There were no exhibits to this affidavit.

21. By way of two complaints to the WRC, dated 13th August 2024 and 20th October 2024, the appellant initiated the WRC process in respect of his dismissal by the respondent.

Although the first complaint is stated to be unfair dismissal, the ground for the complaint is expressly pronounced to fall under the 2014 Act.

22. When the application for interim relief came before the Circuit Court on the 25th of July 2024, the respondent employer did not appear in Court. The appellant indicates that the Court heard the application and intended to grant an order but required a CRO document in respect of the company to do so. The details of this Circuit Court hearing are not before this Court.

23. Ultimately, the Order of the Circuit Court made on 25th July, reflects:

• that the application was adjourned to October 2024,

• with the appellant to file CRO report and,

• the Court Office to contact the respondents advising them of the adjourned date.

24. The application was next before the Circuit Court on the 11th of October 2024, when the respondent was represented. Having heard Counsel for the respondent and the appellant in person, the Court further adjourned the application to the 5th of December 2024 and directed that the time for the filing of an appearance and any affidavit by the defendant be extended by a week, with two weeks thereafter for the appellant to file any further affidavit.

25. In the premises, each side filed a number of affidavits before the adjourned date and the matter was heard in full on 3rd December when the Circuit Court refused the appellant’s application for interim relief under the 2014 Act.

Submissions:

26. The appellant is a litigant in person. While he listed 20 grounds of appeal in an affidavit accompanying his appeal to this Court, his submissions advanced to the Court can be summarised as follows:

i. He is entitled to interim relief, and in particular in this regard continuation of his contract of employment, as he made a protected disclosure within the meaning of the 2014 Act by way of e-mail dated 8th May 2024 to his employer which was wholly or mainly the reason for his dismissal in July 2024.

ii. As there was no appearance by the respondent employer on the date the application was first listed, and proof of service was established, the Circuit Court ought not have adjourned the application but ought to have made an order for the continuation of his contract of employment at that time, in accordance with s.2(9) of the s.11 Schedule.

iii. S.5(5) of the 2014 Act was wrongly interpreted and/or did not apply as it was not the appellant’s function to “detect, investigate or prosecute” wrongdoings.

27. While the appellant sought to introduce fresh evidence and give oral evidence himself together with a desire to cross examine the respondent’s deponents, this was refused given the nature of the application having been heard on affidavit, and there being no separate application either to adduce fresh evidence or to cross examine made in advance (either before the Circuit Court or this Court on appeal). While this appeal is a de novo in nature, it is an appeal based on the evidence as proffered to the Court.

28. The respondent’s arguments can be summarised as:

i. The appeal should be dismissed in limine as the appellant’s application was brought before any complaint of unfair dismissal was lodged with the WRC such that there were no existing proceedings in being for which interim relief could be granted.

ii. The appellant has not demonstrated that there are substantial grounds for contending that dismissal results wholly or mainly from the employee having made a protected disclosure.

There were two limbs to this argument:

• Any disclosure made in the e-mail of the 8th May is not a protected disclosure as it does not contain ‘relevant information’.

• There is no ‘relevant wrongdoing’ because the appellant did not identify any wrongdoing as there was nothing wrong. In any event, by virtue of s.5(5) of the 2014 Act, it was the function of the appellant as worker, and the respondent as employer, to “detect, investigate or prosecute” such matters which did “not consist of or involve an act or omission on the part of the employer”.

iii. The appellant did not pursue his complaint of the adjournments made before the Circuit Court ultimately heard the application, and in particular what it categorised as the ‘first return date’ of the motion on the 25th of July 2024 when the employer failed to appear in Court. The appellant did not appeal this adjournment order of the Court at the time, and cannot seek to do so now.

Determination:

29. The 2014 Act, as is set out in its preamble, is an Act designed to protect persons from having action taken against them where disclosures coming within the ambit of the Act are made. Part 2 of the Act extensively deals with protected disclosures and Part 3 with the relevant protections. The provisions of s.5(8), which create a presumption in any proceedings that a disclosure is a protected disclosure “until the contrary is proved” is the starting point of any consideration. The exclusion of the 12-month working time requirement in respect of unfair dismissal claim deriving from a protected disclosure brings workers on their probationary period, as here, within its protections.

30. The s.11 Schedule sets out how interim relief pending determination of a claim for unfair dismissal arises and is to be considered. Its intent is undeniably focused upon ensuring speedy access to and determination of interim relief, where this is appropriate, as is evident in the language of s.1(3) and s.1(5). While it is essential to ensure that the protections of the 2014 Act are not abused, and the caution “to look beyond mere face value on either side” expressed by Humphreys J. at para 19 of Clarke v. CGI Food Services Ltd [2020] IEHC 368 is apposite where arising, the import of the 2014 Act is the protection of a person who makes a disclosure who suffers detriment, including loss of livelihood, by expressly providing for speedy interim relief before any issues have been fully determined.

31. First, I refuse the respondent's discrete application to strike out the appeal and the appellant’s application for interim relief in limine on the procedural basis that it was brought in advance of any complaint to the WRC. This argument was set out in the legal submissions advanced before the Circuit Court, which nonetheless heard the application in full. It is effectively a jurisdictional point but does not appear to have been raised at any earlier appearance before the Circuit Court, where such an application might be more appropriate, nor was it of concern to the Circuit Court at either of those earlier hearings.

32. It was argued before this Court on the basis that it is usual to have a court writ issued where interim relief is sought in court proceedings but ultimately this was not pressed.

The respondent accepted the possibility of differing interpretations of the s.11 Schedule of the 2014 Act in this regard however, and the matter was not argued further. It is not clear in the s.11 Schedule that an applicant is wholly precluded from initiating an application for interim relief to the Circuit Court in advance of a formal complaint being made to the WRC. There are different statutory processes for both, including differing timeframes – six months within which to commence a complaint to the WRC but a much more immediate time urgency of 21 days from the dismissal to seek interim relief, and to a different forum.

33. In my view, it was not unreasonable for the appellant’s immediate focus in the aftermath of his summary dismissal to have been on seeking interim relief to preserve his livelihood at earliest opportunity, at least pending his claim being heard. Proceedings before the WRC were in being when the Circuit Court determined that application in December 2024. In the circumstances of this case, I am not prepared to strike out the appellant’s appeal on this basis.

34. Second, I now turn to the appellant’s assertion of a right to have had interim relief by way of an order continuing his contract of employment, by virtue of the non-attendance of the respondent employer on the 25th of July 2024 in accordance with s.2(9) of the s.11 Schedule, where he had proved service to the satisfaction of the court and a hearing was entertained that day.

35. The appellant contends that, pursuant to s.1(3) of the s.11 Schedule, the Circuit Court was obliged to determine his application as soon as practicable and further, pursuant to s.1(5), the Court had no power to adjourn the hearing of his application without special circumstances existing, which are not evident. He submits that the Court was obliged to make order for the continuation of his contract of employment at that time in July, pursuant to s.2(9) and again at the subsequent adjournment on 11th October 2024.

36. The respondent submits that it is now too late to challenge that first adjournment on the basis that (i) the Circuit Court had the power to adjourn (s.1(5)); (ii) it was exercised by the Court such that, in light of the mandatory nature of s.5(1) regarding special circumstances, it can reasonably be inferred that special circumstances existed; (iii) that adjournment order was not appealed at that time by the appellant, as a standalone appeal.

37. The respondent also argued that notwithstanding the fact that the Circuit Court may have heard the appellant at the first appearance in July, this Court cannot know what transpired. In addition, they submit there was insufficient evidence before that Court to grant interim relief at that time as the grounding affidavit (as above) was wholly inadequate, with no protective disclosure set out, no details of the dismissal and no exhibits, albeit it was accepted that the appellant had handed the 8th May e-mail into court.

38. In addition, as the 25th of July 2024 hearing was the first time the matter had come before the Court, it was reasonable, the respondent argued, notwithstanding any imperative in s.1(3) of the s.11 Schedule, that an adjournment would have been required in any event to facilitate the respondent filing its reply to the application, which it did when it ultimately appeared in October. In comparison to an injunction application, it argues, time is always granted to a respondent. In that regard, the provision of s.2(9) of the s.11 Schedule regarding failure of an employer to appear “on the hearing of an application for interim relief” does not apply as this can only refer to a substantive hearing of the application.

39. As mentioned, details of the hearing that day are not before this Court. The appellant informs that he explained the application and handed in his e-mail of the 8th of May to the Circuit Court Judge such that the protected disclosure was before that Court and was considered. It was the appellant’s view that the Court intended to grant relief that day but needed details of the respondent. While it is clear from the Court’s order that any hearing which took place in July 2024 did not then conclude, the reference to a CRO report provides some support to the appellant’s position.

40. In my view, absent an inability to do so, where an application for interim relief comes before the Circuit Court for hearing and good service on a respondent employer who has not appeared is proved to the satisfaction of that Court, the provisions of s.2(9) can arise, notwithstanding that it is a first appearance. Any other interpretation is inconsistent with and risks nullifying the protections envisaged by the 2014 Act and the interim relief provisions of the s.11 Schedule in particular. The notice of motion is returnable for hearing. The provisions of s.1(3), which envisage as soon a hearing as is practicable, and s.1(5), which prohibits postponement of the hearing save where special circumstances exist, are mandatory.

41. The similarly mandatory nature of s.2(9) recommends itself to me as a default starting point for interim relief, where a respondent employer fails to appear for the hearing, even if that hearing is then adjourned, subject of course to the Circuit Court being satisfied in that hearing that interim relief is appropriate in all the circumstances. The provisions of s.4 of the s.11 Schedule reinforce my view in this regard as it affords the employer an opportunity at any time to apply for a revocation or variation of any order made, which would include during a period of any adjournment, if appropriate. Such interpretation is consistent with the protective nature of the provisions and accords with similar views on the intention of the 2014 Act as set out by Phelan J. in Nolan v. Fingal County Council [2022] IEHC 335 and the impact identified by Humphreys J. in Clarke at para 16.

42. In respect of whether or not the appellant is entitled to interim relief, the respondent submits there is no “relevant wrongdoing” within the meaning of s.5 of the 2014 Act, either as a matter of fact or law.

43. In respect of fact, the respondent employer avers that what Mr Malone describes as the appellant’s “observations” in the e-mail of the 8th of May were acted upon in that at that time:

• they were discussed with the independent fire consultant;

• there was a further inspection of the premises with the fire consultant and the property owner;

• it was decided no further changes to the updated system were required;

• the client’s requirements have been satisfied;

• such that “the works as then completed where entirely sufficient and in order”;

• such that there was no ‘relevant wrongdoing’ within the meaning of the Act.

44. These factual matters are issues for determination before the WRC. However, what is required by s.5 of the 2014 Act is “the reasonable belief of the worker” that the information tended to show relevant wrongdoing. Therefore, for the purposes of this application, in light of the contents of the e-mail of the 8th May and the correlating fire safety offences which the appellant has set out he believed arose, it seems to me that he had such reasonable belief at the time of writing that e-mail.

45. In addition, as a matter of law, the respondent also submits that there is no “relevant wrongdoing” in accordance with s.5(5) as it was the appellant’s function or role to ‘detect, investigate or prosecute’ fire safety matters. It asserts that adjunct to the appellant’s normal job of carrying out the remediation works in the Crosshaven premises, was an obligation to ‘detect, investigate or prosecute’ issues that came to his attention. Indeed, in submissions, the respondent commended the appellant for having raised the additional matters. As a matter of law however, he argued that they did not amount to ‘relevant wrongdoing’ in circumstances where it came within the appellant’s attention in the course of his role or function. The appellant strongly denies that his role or function, under his contract or in fact, involved any element to ‘detect, investigate or prosecute’ in respect of his job. It appears common case that on the facts, the works the appellant undertook in May arose as directed by the fire officer, consequent to his first inspection in April 2024.

46. The provisions of s.(5) have been considered by the High Court in two previous cases, which were opened to this Court. In Clarke, referenced above, Humphreys J. confirmed that “there are two requirements (an investigative function and misconduct other than by the employer) which must both be present to exclude something from the definition of relevant wrongdoing, and which are joined by the word “and”.

47. Both parties heavily advanced the analysis of Phelan J. in Nolan v. Fingal County Council (paras 46 and 47) in respect of the meaning of “to detect, investigate or prosecute’ in the first such limb of s.5(5), but sharply diverge on its application to the role and function of either the respondent employer or the appellant in their work. Nolan was an appeal to the High Court on a point of law following a determination by the Labour Court, which essentially found that an employer investigating wrongdoing as part of its general duties of health and safety did not come within s.5(5).

48. At para 46 of Nolan Phelan J. indicates, on the correct interpretation of s.5(5), that:

“[a]s a limitation on the scope of the protection available under the 2014 Act, it falls to be narrowly construed. In essence it provides that if it is the worker’s or the employer’s role to detect, investigate or prosecute any wrongdoing and the wrongdoing reported relates to a person other than the employer, then it is not a wrongdoing for the purpose of the Act”.

49. Having identified, by way of example, officers of An Garda Síochána or the Revenue Commissioners who uncover wrongdoing by persons other than their employer in the course of their day to day duties as falling within s.5(5) and therefore not amounting to protected disclosures within the meaning of the 2014 Act because that is their role and function, Phelan J. went on to say:

“[i]t seems to me that the Labour Court fell into error in construing the words “to detect, to investigate or to prosecute” widely as embracing general duties on an employer pursuant to an obligation to provide a safe place or safe system of work.

While the words may have a disjunctive application, the manner in which they are associated with each other in s. 5(5) also informs their proper interpretation.

[…] It seems to me that the language of “function to detect, to investigate or to prosecute” connotes either a public law role or at least an official role pursuant to a particular contractual obligation in detecting, investigating or prosecuting rather than a role which might be implied as arising from the general duties on an employer.

Otherwise, s.5(5) would render s.5(3) entirely devoid of effect because an obligation to investigate wrongdoing in the workplace could be implied as a general duty of any employer. This cannot have been the statutory intention, and the construction adopted by the Labour Court would substantially reduce the effectiveness of the 2014 Act”.

50. The respondent in this case asserts that it falls within the second limb of that connotation

– ‘an official role pursuant to a particular contractual obligation”, by virtue of his having been hired to carry out the remedial works directed by the fire officer. It is the role and function of the respondent as employer and of its workers, including the appellant, it argues, to investigate and detect any additional safety hazards that might come to light in the course of carrying out works it was contracted to do.

51. The appellant strongly disagrees that he ever had any such investigative role or function. He argues that the public law role identified by Phelan J. above correlates with the County Council fire officer in this case, as evidenced by the fact that the employer company was only called in to carry out remedial works, either in respect of the alarm activating in the April 2024 visit when the fire officer was due or as then directed by that fire officer, in the May 2024 visit.

52. Prima facie, it appears to me that any such additional discoveries seem more akin consequences of the “general duties” inherent in the role performed by the employer and its employees (including the appellant) rather than elevating it to “an official role”

to detect, investigate and prosecute referenced by Phelan J. above. I express no concluded view on this issue as this is a matter which will have to be determined in the substantive proceedings before the WRC. Nolan was an appeal subsequent to a Labour Court hearing such that the substantive consideration of that claim had already occurred. However, for the purposes of determining on this application for interim relief, I am satisfied that it is not clear that the employer falls within the exception provided for at s.5(5).

53. In respect of the test to be applied in this regard, the respondent also advanced a decision of the Circuit Court (Comerford J.) in Dougan & Clarke v. Lifeline Ambulances Ltd (Unreported), albeit not binding, it was urged on the Court as persuasive in its consideration of “substantial grounds” in s.2 of the s.11 Schedule, that “[i]t is likely that there are substantial grounds for contending that dismissal results wholly or mainly from the employee having made a protected disclosure”.

The dismissal was wholly or mainly from the protected disclosure:

54. It is not in dispute that the appellant was dismissed at a meeting on the 5th of July 2024.

The respondent asserts his dismissal was because a number of complaints which were received from customers in June of 2024 with one unidentified incident referenced in July of 2024. There would appear to have been no complaints during the 9 months from when he commenced employment in September 2023 to June 2024 as none are mentioned in any affidavit, in particular there was no suggestion of any complaint prior to his e-mail of the 8th of May.

55. What constitutes substantial grounds is well established in the oft-quoted extract of Carroll J. in McNamara v. An Bord Pleanála [1995] 2 ILRM 125, and is set out in the Dougan judgment:

“in order for a ground to be substantial, it must be reasonable, it must be arguable, it must be wait a full stop it must not be trivial or tenuous. However, I am not concerned with trying to ascertain what the eventual result will be. I believe I should go no further than satisfy myself that the grounds are substantial stop 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”.

It continued:

“I draw a distinction between the grounds and the various arguments put forward in support of those grounds. I do not think I should evaluate each argument and say whether I consider it sound or not. If I consider aground, as such, to be substantial, I do not also have to say that the applicant is confined in his arguments at the next stage to those which I believe may have some merit”.

56. Whether or not the appellant's dismissal in fact “wholly or mainly” resulted from a protected disclosure is a matter for determination by the WRC in due course. The positions of the parties are diametrically opposite. The appellant asserts that his dismissal arose wholly or mainly from the protected disclosure and he is unaware, despite request, of the details of complaints the respondent refers. On the other hand, the respondent employer states that the disclosure has nothing to do with the appellant’s dismissal which came about only as a result of complaints made in the context of a probationary period where the employer is at large to dismiss without having to establish a reason.

57. In Clarke, Humphreys J. sets out a number of considerations that may be relevant to examining whether substantial grounds existed for contending a dismissal related to a protective disclosure in respect of alleged underperformance. In the instant case, no similar procedure arose as the appellant was serving his probationary period, with the result he was given no reason for his dismissal. The appellant was unable to address any such allegations of complaints for the purposes of this application, nor were details available for the Court to include in its consideration.

58. However, it is evident from Clarke that proximity of time is a useful consideration. In this case, the reference to “multiple” complaints made against the appellant by customers, upon which the employer relies, is vague and unexplained, despite the appellant’s request for details. They arose for the first time only in June 2024 against what appears to be an otherwise unblemished work performance over the previous nine months. While they are more proximate to the dismissal than the disclosure, this is only by a month and arose very quickly thereafter. In my view, there are substantial grounds for asserting the real watershed point between no complaints regarding the appellant’s performance and the sudden existence of multiple such complaints is the e-mail on the 8th of May.

59. In my view, the appellant has sufficiently established a reasonable, arguable and weighty ground that his dismissal arose wholly or mainly as a result of his disclosure, in light of its sufficient proximity with his dismissal. I do not find the argument regarding time pressure under a probationary period to negate that ground as less than substantial. Therefore, for the purposes of determining the application for interim relief, I accept that the appellant has demonstrated that it is likely that there are substantial grounds for contending that the e-mail of 8th May constituted a protected disclosure, which drew his employer’s attention to potential illegalities and wrongdoings under the fire safety provisions arising from the work he had been carrying out. Further, I find that his dismissal resulted wholly or mainly from that disclosure of fire safety concerns in relation to the apartment above the pub.

60. I therefore conclude that the appellant has established the requirements for interim relief under the provisions of s.11 Schedule in circumstances where it is not clear that the provisions in s.5(5) avail this respondent employer of an exemption or restriction in that regard, mindful in particular of Phelan J.’s views in Nolan that such a limitation must be strictly construed. In these circumstances, I allow the appeal and I will hear the parties in respect of an appropriate order.