Clarke v CGI Food Services Ltd & Anor (Approved)

Factual and Procedural Background

The Plaintiff commenced employment as Group Financial Controller with the Defendants in January 2017. During his tenure, the Plaintiff raised concerns relating to payments to directors exceeding agreed limits, personal spending on company credit cards, false invoices, unvouched expenses, Revenue issues, and food safety matters. Following these disclosures, the Plaintiff alleges he was subjected to penalisation, marginalisation, and exclusion from management meetings. He was suspended in April 2019 and subsequently dismissed in May 2019.

The Plaintiff initiated proceedings under the Protected Disclosures Act 2014 by filing an Equity Civil Bill in the Circuit Court seeking continuation of his employment contract. The Circuit Court granted interim relief ordering the Defendants to maintain the Plaintiff’s pay and benefits pending determination of his complaint before the Workplace Relations Commission (WRC). The Defendants appealed this interim order to the High Court.

The WRC hearing experienced multiple adjournments due to requests by the Defendants, the Plaintiff’s unavailability, and the COVID-19 emergency. The High Court was tasked with hearing the appeal against the Circuit Court’s interim relief order.

Legal Issues Presented

1. Whether the Plaintiff’s complaints constitute protected disclosures under the Protected Disclosures Act 2014.
2. Whether it is appropriate to continue the status quo by ordering the Defendants to maintain the Plaintiff’s pay and benefits pending the WRC determination.
3. Whether the dismissal of the Plaintiff was principally due to his making protected disclosures or legitimate performance issues.

Arguments of the Parties

Appellant's Arguments (Defendants)

• The Plaintiff’s complaints amount to a “rolling series of allegations” that do not qualify as protected disclosures.
• The financial matters raised do not fall within the definition of protected disclosures, particularly invoking a misinterpretation of section 5(5) of the Act.
• The Plaintiff only characterized his complaints as protected disclosures after dismissal, suggesting retrospective re-characterisation to gain statutory protection.
• The dismissal was due to legitimate performance issues rather than the disclosures made by the Plaintiff.
• Reliance was placed on the Labour Court decision in Donegal County Council v. Carr to argue that no protected disclosures were made.

Appellee's Arguments (Plaintiff)

• The Plaintiff’s disclosures related to serious concerns including food safety violations and financial irregularities, which fall within the scope of protected disclosures under the Act.
• The employer’s misquotation and misinterpretation of section 5(5) of the Act ignores the requirement that the wrongdoing must involve an act or omission on the part of the employer.
• The sequence of events suggests a campaign of penalisation following the disclosures, including arbitrary performance reviews and procedural irregularities in disciplinary proceedings.
• The Plaintiff’s disclosures were made in good faith and the adverse consequences, including dismissal, arose because of these disclosures.
• The employer’s performance-related dismissal claim is a pretext to conceal the true reason for dismissal, which was the making of protected disclosures.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court analysed the nature of the Plaintiff’s disclosures, focusing on food safety and financial irregularities, and found these fell within the scope of protected disclosures as defined in the Protected Disclosures Act 2014. The Court rejected the Defendants’ mischaracterisation of the statutory provisions, particularly the misquotation of section 5(5), emphasizing that wrongdoing must involve the employer’s act or omission to exclude protection.

The Court noted the sequence of events whereby performance concerns only arose after the Plaintiff made disclosures, suggesting the performance issues were a pretext for dismissal. The Court identified multiple procedural irregularities in the disciplinary process, including the absence of an independent chair and lack of proper investigation or questioning, supporting the contention that dismissal was motivated by the protected disclosures.

The Court referred to authoritative precedent from the UK Supreme Court in Royal Mail Group Ltd. v. Jhuti, underscoring the duty to look beyond invented reasons for dismissal. Applying this principle, the Court found it likely there were substantial grounds to contend that dismissal was mainly due to protected disclosures.

The Court further noted that the Plaintiff’s complaints had some evidential support warranting further investigation and that the balance of justice favored maintaining the status quo pending the final determination by the Workplace Relations Commission.

Holding and Implications

The Court DISMISSED THE APPEAL and affirmed the Circuit Court’s order granting interim relief.

The Defendants are ordered to continue the Plaintiff’s contract of employment for pay and benefits from the date of termination until the final determination of the claim before the Workplace Relations Commission and any appeal arising therefrom.

The Court also directed that the Plaintiff’s solicitors transmit a copy of the judgment and all relevant papers to the Department of Agriculture, Food and the Marine and the Revenue Commissioners for any investigations they consider appropriate regarding the food safety and financial concerns raised.

No new precedent was established; the decision primarily preserves the Plaintiff’s rights pending full adjudication and underscores the protection afforded to whistleblowers under the Protected Disclosures Act 2014.