Rónán Mullen (Independent)

I move amendment No. 3:

In page 14, line 12, after "contravened" to insert the following:

", or in any action in damages of the kind specified in section 8A(1)".

Section 3(7) of the Schedule provides that: "In proceedings under this Schedule before a rights commissioner or the Labour Court in relation to a complaint that section 8A(5) has been contravened, it shall be presumed, until the contrary is proved, that the employee concerned acted reasonably and in good faith in forming the opinion and making the communication concerned." That section 8A(5) provides that: "An employer shall not penalise or threaten penalisation against any employee or cause or permit any other person to penalise or threaten penalisation against an employee ... for ... having [among other things] formed an opinion of the kind referred to in subsection(1) and communicated it". It is only in the case that the person formed the opinion and communicated it knowing it to be false, misleading, frivolous or vexatious, or was reckless as to that, that an employer may penalise or threaten penalisation.

Subsection (7) of the Schedule referred to by the Minister simply tracks the normal employment law position. For example, in the case of unfair dismissals legislation, where it is established that a person has been dismissed, the dismissal is presumed to be unfair. In employment law the presumption operates to the benefit of the employee. In a sense, this subsection seeks to achieve that in so far as section 8A(5) is concerned. Where an employee makes a complaint that he or she has been penalised for allegedly making or engaging in a false, misleading or vexatious act of whistleblowing, the presumption lies in his or her favour. The onus is on the employer to prove the employee had not acted reasonably and in good faith. The effect of my amendment would be to seek to extend in an explicit fashion the same protection to an employee where he or she was the defendant in an action in damages brought, for example, by an employer in regard to an allegedly false, misleading, frivolous or vexatious act of whistleblowing.

In normal tort matters the onus or burden of proof is on the plaintiff or person bringing the case. To that extent one could say the plaintiff would have to do the proving in any case and the employee or former employee would enjoy that presumption to the extent that the burden of proof would be on the plaintiff. It is worth making more explicit the presumption that the employee concerned was acting reasonably and in good faith. That presumption should also operate in the kind of proceedings specified within section 8A(1), namely, proceedings in damages in respect of a communication or an act of whistleblowing, the substance of which the defendant allegedly knew to be false, misleading, frivolous or vexatious, or was reckless as to all that. It would strengthen the psychological impact of this Bill in favour of whistleblowers were it to be made explicit where an employee is concerned. There are other people who might be the subject or target of proceedings under section 8A(1), but where it relates to an employee, it would be consistent to have this made explicit and the employee would be presumed to have acted reasonably and in good faith until the contrary was proven.

The question has been asked whether this is the appropriate place to extend such protection because subsection (7) relates to the Schedule and to proceedings under the Schedule of an employment nature before a rights commissioner or the Labour Court in regard to a complaint of victimisation or penalisation. I believe the amendment I have drafted is sufficiently stand-alone to allow it to relate to proceedings taken under section 8A(1).