Food company must maintain employment of director who made protected disclosure

Court rules contract must be continued until WRC makes determination

The judge said  it could be argued that the director’s dismissal resulted from him having made a protected disclosure. Photograph: iStock

The judge said it could be argued that the director’s dismissal resulted from him having made a protected disclosure. Photograph: iStock

 

The High Court has ruled that a food company must continue the contract of employment of a director who made protected disclosures about alleged wrongdoings until their dispute has been determined by the Workplace Relations Commission.

The protected disclosures were made by CGI Food Services and CGI Holdings Ltd’s group financial controller John Clarke, who was dismissed from his role in May 2019.

Mr Clarke claims he was dismissed, following his suspension, because he made a protected disclosure about food safety and financial irregularities.

He claimed there were serious shortcomings regarding the storage and freezing of customer food products.

Products were not frozen for the required period and food was stored where animal blood had leaked, it is claimed.

He also claimed that on one occasion 22 pallets of pizza specifically for consumption of children was allowed to thaw, was re-frozen and the sold.

He also raised concerns that payments made to company directors exceeded limits agreed with the firm’s bank.

He further claimed that company monies were used to pay for work at the home of a director, that VAT was incorrectly claimed on personal expenditure and money was spent for a relative of a director to do a 13-week course at Ballymaloe Cookery School.

In addition it is alleged the wives of a director and one of his associates were paid by the company, in one case up to €4,000 a month. even they didn’t appear to do any work.

Mr Clarke claims he was marginalised and the subject of a campaign of penalisation, intimidation and pressure.

His allegations are denied.

Mr Clarke, represented by Ercus Stewart SC, with Susan Jones BL, instructed by Jones Solicitors, has challenged the decision to dismiss him, and his action is pending before the Workplace Relations Commission.

In addition, Mr Clarke secured, under the 2014 Protected Disclosures Act, a temporary order from the Circuit Court maintaining his pay and benefits until the WRC has ruled on the matter.

The company appealed the decision to grant the stay to the High Court.

It was the first time that the High Court had been asked to deal with a temporary order granted under the 2014 Act.

Defendants’ arguments

Seeking to have the stay overturned, the defendants argued that Mr Clarke’s claims did not amount to protected disclosures and also claimed that Mr Clarke didn’t make any mention of protected disclosures until after he was dismissed.

In a written decision, Mr Justice Richard Humphreys upheld the Circuit Court’s decision and dismissed the defendant’s appeal.

He was satisfied that Mr Clarke’s concerns amounted to protected disclosures.

The interim stay is to remain in place, the Judge held, and Mr Clarke is to be paid from the date of the termination of his employment until the final determination of his claim before the WRC.

While not deciding on the dispute, the judge said he was satisfied on the evidence before the court that it could be argued that Mr Clarke’s dismissal resulted from him having made a protected disclosure.

This, the judge said, was supported by factors including that issues raised by the defendants about Mr Clarke’s job performance only emerged after he made a protected disclosure.

The judge added that while the merits of matters before the WRC do not fall to be determined by the High Court, the complaints made by Mr Clarke could warrant further investigation.

Without pre-empting the company’s defence, the judge said it was in the public interest that a copy of his judgment and the documents in the case be sent to the Department of Agriculture, Food and the Marine for whatever food safety investigations they consider appropriate.

The same documents should also be forwarded to the Revenue Commissioners the judge added.