Facts: Aisling Murphy (the “Complainant”) was a pharmacist who was employed by the Madigan’s Pharmacy Kilkenny...

Facts: Aisling Murphy (the “Complainant”) was a pharmacist who was employed by the Madigan’s Pharmacy Kilkenny Ltd (the “Respondent”) from 1st September 2020 until her dismissal on 1st June 2021. The Complainant alleged that she was dismissed due to having made a protected disclosure and brought a claim under the Unfair Dismissals Acts for unfair dismissal. The Complainant appealed the WRC decision which held that her dismissal was not wholly or mainly due to having made a protected disclosure.

The Complainant did not have the requisite one year’s service to make a claim under the Unfair Dismissals Acts but if she proved that the dismissal was due to having made a protected disclosure then she was exempt from having to meet this service requirement.

The Complainant alleged that the dismissal was due to her having made a protected disclosure on 11th May 2021 and 18th May 2021. The Respondent contended that the Complainant was dismissed due to concerns with her performance.

On 4th December 2020 the Complainant was promoted to Supervising Pharmacist and given a salary increase to €75,000. The Respondent stated that this promotion was given as the Complainant threatened to leave if not granted and they could not operate without a pharmacist. The Complainant alleged that there were never any performance issues raised with her. The Complainant was dismissed on 1st June 2024 by letter stating that they needed a pharmacist with more experience. In evidence, the Respondent claimed that the Complainant could not do the job and that they had started looking for her replacement in October 2020. The Respondent produced evidence of this at the hearing. The Respondent offered a replacement pharmacist a job on 10th May 2021 which was accepted and that person started on 2nd June 2021.

The Complainant had no idea that the Respondent had been looking for a replacement for her. Therefore, she assumed that her dismissal was due to her having made a protected disclosure. The Complainant secured alternative employment almost immediately after her dismissal.

Decision: The Labour Court referred to the O’Neill v. Toni and Guy Blackrock Ltd decision and held that the act or omission complained of must have been incurred because of, or in retaliation for, the worker having made a protected disclosure. This is also referred to as the “but for” test i.e. but for the Complainant having made the protected disclosure she would not have been dismissed.

The Labour Court relied on the uncontested evidence that the Respondent was engaged in efforts to replace the Complainant over a period of several months which concluded on 10th May 2021, being the day before the first protected disclosure. It therefore held that on the balance of probabilities the dismissal was not due to the Complainant having made a protected disclosure. The Complainant did not satisfy the “but for” test.

As the Complainant failed to link her dismissal to the protected disclosures, she did not benefit from the exemption to the requirement to have one year’s service to take a claim under the Unfair Dismissals Acts. Therefore, she had no right to take a claim under the Unfair Dismissals Acts and the Labour Court had no jurisdiction to hear the claim.

Takeaway for Employers:

It is worth noting that it was not contested in this case that the Complainant had made protected disclosures. The key element is that the employer was able to prove that the dismissal was planned before the Complainant made the protected disclosures and therefore it was not “wholly or mainly” due to her having made a protected disclosure. This case illustrates the importance of having written records and proof of when and on what basis a decision to dismiss an employee is made. However, if the Complainant had a year’s service, her dismissal would have been held to have been an unfair dismissal due to the lack of any procedures followed.

Link  - https://www.workplacerelations.ie/en/cases/2024/july/udd2424.html

Authors – Anne O’Connell