An employee must elect between a WRC claim and cause of action in tort when pursuing a penalisation and/or unfair dismissal action.

The Plaintiff alleged that emails sent to him by his employer constituted penalisation arising from a protected disclosure made by him, and that his resignation constituted constructive dismissal.

The Plaintiff complained to the Workplace Relations Commission (WRC) on two occasions, where the adjudication officer determined as a preliminary issue that his complaints were outside the statutory time limit. No appeal was taken to the Labour Court by the Plaintiff.

A year after the WRC decision, the Plaintiff issued High Court proceedings seeking a number of reliefs including relief in tort pursuant to s.13 of the Protected Disclosures Act 2014 (as amended). He argued that because his claim was not adjudicated upon in substance by the WRC, he remained entitled to pursue a claim under s.13.

The High Court observed that a potentially anomalous position was created by s.12 and s.13 of the 2014 Act, which provide for alternative remedies and an obligation to elect between them where the time limits applicable to the remedies are different.

The Court noted that the time limit for a cause of action in tort is the normal six-year time limit under s.11(2) of the Statute of Limitations Act 1957, whereas the relevant time limit for a penalisation claim is six months, extendable for no more than a further six months and that a claim under the 1977 Act imposes a similar time limit.

The High Court considered whether the Plaintiff’s election of a remedy that was statute-barred prevents him from pursuing a remedy that arguably is not; and refused to dismiss the claim.

The Minister appealed to the Court of Appeal.

The Court of Appeal allowed the minister’s appeal and dismissed the proceedings as bound to fail.

The Court set out that s.13(2) precludes a person from pursuing alternative reliefs in the respect of the same matter, in that a person must elect between seeking a remedy in tort under s.13(1) and seeking redress under Schedule 2 of the 2014 Act or the Unfair Dismissals Acts 1977 to 2015.

It was held that nothing in the legislation disclosed any basis for reading s.13(2) other than in its natural and ordinary meaning and that no ambiguity arose therefrom when read in context, Ms Justice Hyland clarified that s.13(2) “manifestly envisages that the die is cast once a person has made or presented the complaint. There is absolutely no conditionality in respect of the election having regard to what happens to the complaint before the WRC (or indeed before the courts if the tortious route is chosen).”

An employee must elect between a WRC claim and cause of action in tort when pursuing a penalisation and/or unfair dismissal action.

The full case can be found here.