Property Services (Regulation) Act 2011

67.

Protection for persons reporting improper conduct, etc.

67.— (1) A person who, apart from this section, would be so liable shall not be liable in damages in respect of the communication to the Authority, whether in writing or otherwise, of his or her opinion that any improper conduct by a licensee may have occurred or may be occurring, or that a contravention of a provision of this Act or of regulations made under this Act by a person other than a licensee may have been or may be being committed, unless—

( a) in communicating his or her opinion to the Authority did so—

(i) knowing it to be false, misleading, frivolous or vexatious, or

(ii) reckless as to whether it was false, misleading, frivolous or vexatious,

or

( b) in connection with the communication of his or her opinion to the Authority, furnished information that he or she knew to be false or misleading.

(2) The reference in subsection (1) to liability in damages shall be construed as including a reference to liability to any other form of relief.

F3 [ (2A) Subsection (1) does not apply to a communication, or furnishing of information, that is a protected disclosure within the meaning of the Protected Disclosures Act 2014. ]

(3) A person who makes a communication under subsection (1), which the person knows to be false, that any improper conduct by a licensee may have occurred or may be occurring, or that a contravention of a provision of this Act or of regulations made under this Act by a person other than a licensee may have been or may be being committed, is guilty of an offence.

F3 [ (3A) Subsection (3) does not apply to a communication that is a protected disclosure within the meaning of the Protected Disclosures Act 2014. ]

(4) Subsection (1) is in addition to, and not in substitution for, any privilege or defence available in legal proceedings, by virtue of any statutory provision or rule of law in force immediately before the commencement of this section, in respect of the communication by a person to another (whether that other person is the Authority or not) of an opinion of the kind referred to in subsection (1).

(5) An employer shall not penalise or threaten penalisation against an employee, or cause or permit any other person to penalise or threaten penalisation against an employee, for—

( a) having formed an opinion of the kind referred to in subsection (1) and communicated it, whether in writing or otherwise, to the Authority unless the employee—

(i) in communicating his or her opinion to the Authority did so—

(I) knowing it to be false, misleading, frivolous or vexatious, or

(II) reckless as to whether it was false, misleading, frivolous or vexatious,

or

(ii) in connection with the communication of his or her opinion to the Authority, furnished information that he or she knew to be false or misleading,

or

( b) giving notice of his or her intention to do the thing referred to in paragraph (a).

F3 [ (5A) Subsection (5) does not apply to a communication, or furnishing of information, that is a protected disclosure within the meaning of the Protected Disclosures Act 2014. ]

(6) Schedule 4 shall have effect for the purposes of subsection (5).

(7) An employer who contravenes subsection (5) is guilty of an offence.

(8) A person guilty of an offence under subsection (3) or (7) shall be liable—

( a) on summary conviction, to a class A fine or imprisonment for a term not exceeding 12 months or both, or

( b) on conviction on indictment, to a fine not exceeding €50,000 or imprisonment for a term not exceeding 3 years or both.

(9) Any person who, upon examination on oath authorised under paragraph 3(1) of Schedule 4 , wilfully makes any statement which is material for the purpose and which the person knows to be false or does not believe to be true is guilty of an offence and liable on summary conviction to a class A fine or imprisonment for a term not exceeding 12 months or both.

(10) A person to whom a notice under paragraph 3(2) of Schedule 4 has been given and who refuses or wilfully neglects to attend in accordance with the notice or who, having so attended, refuses to give evidence or refuses or wilfully fails to produce any document to which the notice relates is guilty of an offence and liable on summary conviction to a class A fine.

(11) A document purporting to be signed by the chairperson or a deputy chairperson of the Labour Court stating that—

( a) a person named in the document was, by a notice under paragraph 3(2) of Schedule 4 , required to attend before the Labour Court on a day and at a time and place specified in the document, to give evidence or produce a document, or both,

( b) a sitting of the Labour Court was held on that day and at that time and place, and

( c) the person did not attend before the Labour Court in pursuance of the notice or, as the case may be, having so attended, refused to give evidence or refused or wilfully failed to produce the document,

shall, in a prosecution of the person under subsection (10), be evidence of the matters so stated without further proof unless the contrary is shown.

(12) For the purposes of this section, a reference to “dismissal” includes—

( a) a dismissal within the meaning of the Unfair Dismissals Acts 1977 to 2007, and

( b) a dismissal wholly or partly for or connected with the purpose of the avoidance of a fixed-term contract being deemed to be a contract of indefinite duration under section 9(3) of the Protection of Employees (Fixed-Term Work) Act 2003.

(13) Paragraphs (a), (c), (d), (e) and (f) of the definition of “penalisation” in subsection (14) shall not be construed in a manner which prevents an employer from—

( a) ensuring that the business concerned is carried on in an efficient manner, or

( b) taking any action required for economic, technical or organisational reasons.

(14) In this section—

“contract of employment” means a contract of employment or of service or of apprenticeship, whether the contract is express or implied and, if express, whether it is oral or in writing;

“employee” means a person who has entered into or works under (or, where the employment has ceased, entered into or worked under) a contract of employment and references, in relation to an employer, to an employee shall be construed as references to an employee employed by that employer;

“employer”, in relation to an employee, means the person with whom the employee has entered into or for whom the employee works under (or, where the employment has ceased, entered into or worked under) a contract of employment, and includes—

( a) a person (other than an employee of that person) under whose control and direction an employee works, and

( b) where appropriate, the successor of the employer or an associated employer of the employer;

“penalisation” means any act or omission by an employer, or by a person acting on behalf of an employer, that affects an employee to his or her detriment with respect to any term or condition of his or her employment, and, without prejudice to the generality of the foregoing, includes—

( a) suspension, lay-off or dismissal,

( b) the threat of suspension, lay-off or dismissal,

( c) demotion or loss of opportunity for promotion,

( d) transfer of duties, change of location of place of work, reduction in wages or change in working hours,

( e) the imposition or the administering of any discipline, reprimand or other penalty (including a financial penalty),

( f) unfair treatment, including selection for redundancy,

( g) coercion, intimidation or harassment,

( h) discrimination, disadvantage or adverse treatment,

( i) injury, damage or loss, and

( j) threats of reprisal.

Annotations:

Amendments:

F3

Inserted (15.07.2014) by Protected Disclosures Act 2014 (14/2014), s. 24(1) and sch. 4 part 1 item 14, S.I. No. 327 of 2014.

Editorial Notes:

E8

Redress and appeal procedures in respect of subs. (5) provided (1.10.2015) by Workplace Relations Act 2015 (16/2015), ss. 41, 44 and sch. 5 part 1 item 24, sch. 6 part 1 item 30, sch. 6 part 2 item 30, S.I. No. 410 of 2015.

E9

Subs. (5) included in definitions of “employment enactment” and “relevant enactment” (1.08.2015) by Workplace Relations Act 2015 (16/2015), s. 2 and sch. 1 part 2 item 15, S.I. No. 338 of 2015, with the following effects:

• Authorised officers or inspectors under employment enactments deemed to be appointed under Workplace Relations Act 2015 (16/2015), s. 26(2) and subject to termination under s. 26(4).

• Powers of inspectors for purposes of relevant enactments defined in Workplace Relations Act 2015 (16/2015), s. 27.

• Workplace Relations Commission, an inspector or an adjudication officer authorised to disclose employer’s registered number or employee’s PPSN to enable Labour Court to perform functions under relevant enactments by Workplace Relations Act 2015 (16/2015) s. 31(5).

• Power of Workplace Relations Commission and official body to disclose information to each other concerning the commission of offence under relevant enactment provided by Workplace Relations Act 2015 (16/2015), s. 32.

• Power of Workplace Relations Commission and contracting authority to disclose information to each other concerning the commission of offence under employment enactment/ relevant enactment provided by Workplace Relations Act 2015 (16/2015), s. 33.

• Powers of Minister to prosecute under relevant enactments transferred to Workplace Relations Commission and references construed by Workplace Relations Act 2015 (16/2015), s. 37.

• Functions of EAT to hear claims under employment enactments transferred to Workplace Relations Commission and references to EAT construed by Workplace Relations Act 2015 (16/2015) s. 66(1), (2), not commenced as of date of revision.