Prevention of Corruption (Amendment) Act 2010
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Insertion of new Schedules into Act of 2001. |
6.— The Act of 2001 is amended by inserting the following Schedules after section 10: | |
“SCHEDULE 1 | ||
REDRESS FOR CONTRAVENTION OF SECTION 8A(5) | ||
Complaints to rights commissioner. | ||
1. (1) An employee (or, in the case of an employee who has not reached the age of 18 years, the employee’s parent or guardian with his or her consent) or, with the consent of the employee, any trade union of which the employee is a member may present a complaint to a rights commissioner that the employee’s employer has contravened section 8A(5) in relation to the employee and it shall not be necessary for the employee to have at least one year’s continuous service with the employer concerned in order to present such complaint. | ||
(2) Where a complaint under subparagraph (1) is made, the rights commissioner shall— | ||
(a) give the parties an opportunity to be heard by the commissioner and to present to the commissioner any evidence relevant to the complaint, | ||
(b) give a decision in writing in relation to it, and | ||
(c) notify the parties of that decision. | ||
(3) A decision of a rights commissioner under subparagraph (2) shall do one or more of the following: | ||
(a) declare that the complaint was or, as the case may be, was not well founded; | ||
(b) require the employer to take a specified course of action, which may include, in a case where the penalisation constitutes a dismissal within the meaning of section 8A(13), re-instatement or re-engagement; | ||
(c) require the employer to pay to the employee compensation of such amount (if any) as is just and equitable having regard to all the circumstances, but not exceeding 104 weeks’ remuneration in respect of the employee’s employment calculated in accordance with regulations under section 17 of the Unfair Dismissals Act 1977 ; | ||
and the references in clauses (b) and (c) to an employer shall be construed, in a case where ownership of the business of the employer changes after the contravention to which the complaint relates occurred, as references to the person who, by virtue of the change, becomes entitled to such ownership. | ||
(4) Subject to subparagraph (10), a rights commissioner shall not entertain a complaint under this paragraph if it is presented to him or her after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates. | ||
(5) Notwithstanding subparagraph (4), a rights commissioner may entertain a complaint under this paragraph presented to him or her after the expiration of the period referred to in subparagraph (4) (but not later than 6 months after such expiration) if he or she is satisfied that the failure to present the complaint within that period was due to exceptional circumstances. | ||
(6) A complaint shall be presented by giving notice of it in writing to a rights commissioner and the notice shall contain such particulars and be in such form as may be specified from time to time by the Minister for Enterprise, Trade and Innovation. | ||
(7) A copy of a notice under subparagraph (6) shall be given to the other party concerned by the rights commissioner. | ||
(8) Proceedings under this paragraph before a rights commissioner shall be conducted otherwise than in public. | ||
(9) A rights commissioner shall furnish the Labour Court with a copy of each decision given by the commissioner under subparagraph (2). | ||
(10) Where a delay by an employee in presenting a complaint under this paragraph is due to any misrepresentation by the employer, subparagraph (4) shall be construed as if the reference to the date of the contravention were a reference to the date on which the misrepresentation came to the employee’s notice. | ||
Appeals from decisions of rights commissioner. | ||
2. (1) A party concerned may appeal to the Labour Court from a decision of a rights commissioner under paragraph 1(2) and, if the party does so, the Labour Court shall give the parties an opportunity to be heard by it and to present to it any evidence relevant to the appeal, shall make a determination in writing in relation to the appeal affirming, varying or setting aside the decision and shall communicate the determination to the parties. | ||
(2) An appeal under this paragraph shall be initiated by the party concerned giving, within 42 days (or such greater period as the Court may determine in the particular circumstances) from the date on which the decision to which it relates was communicated to the party, a notice in writing to the Labour Court containing such particulars as are determined by the Labour Court under clauses (e) and (f) of subparagraph (4) and stating the intention of the party concerned to appeal against the decision. | ||
(3) A copy of a notice under subparagraph (2) shall be given by the Labour Court to any other party concerned as soon as practicable after the receipt of the notice by the Labour Court. | ||
(4) The following matters, or the procedures to be followed in relation to them, shall be determined by the Labour Court, namely: | ||
(a) the procedure in relation to all matters concerning the initiation and the hearing by the Labour Court of appeals under this paragraph; | ||
(b) the times and places of hearings of such appeals; | ||
(c) the representation of the parties to such appeals; | ||
(d) the publication and notification of determinations of the Labour Court; | ||
(e) the particulars to be contained in a notice under subparagraph (2); and | ||
(f) any matters consequential on, or incidental to, the foregoing matters. | ||
(5) The Labour Court may refer a question of law arising in proceedings before it under this paragraph to the High Court for its determination and the determination of the High Court shall be final and conclusive. | ||
(6) A party to proceedings before the Labour Court under this paragraph may appeal to the High Court from a determination of the Labour Court on a point of law and the determination of the High Court shall be final and conclusive. | ||
Paragraphs 1 and 2: supplemental provisions. | ||
3. (1) The Labour Court shall, on the hearing of any appeal referred to it under paragraph 2, have power to take evidence on oath or on affirmation and for that purpose may cause persons attending as witnesses at that hearing to swear an oath or make an affirmation. | ||
(2) The Labour Court may, by giving notice in that behalf in writing to any person, require such person to attend at such time and place as is specified in the notice and— | ||
(a) to give evidence in relation to any matter appealed to the Labour Court under paragraph 2, or | ||
(b) to produce any document specified in the notice relating to the matter in the person’s possession or power, | ||
or both. | ||
(3) A witness at a hearing of an appeal before the Labour Court has the same privileges and immunities as a witness before the High Court. | ||
(4) Where a decision of a rights commissioner in relation to a complaint under this Schedule has not been carried out by the employer concerned in accordance with its terms, the time for bringing an appeal against the decision has expired and no such appeal has been brought or, if such an appeal has been brought, it has been abandoned, the employee concerned may bring the complaint before the Labour Court and the Labour Court shall, without hearing the employer concerned or any evidence (other than in relation to the matters aforesaid), make a determination to the like effect as the decision. | ||
(5) The bringing of a complaint before the Labour Court under subparagraph (4) shall be effected by giving to the Labour Court a written notice containing such particulars (if any) as may be determined by the Labour Court. | ||
(6) The Labour Court shall publish, in a manner it considers appropriate, particulars of any determination made by it under any of clauses (a), (b), (c), (d), (e) and (f) of subparagraph (4) of paragraph 2 (not being a determination as respects a particular appeal under that paragraph) and subparagraph (5). | ||
(7) 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. | ||
(8) (a) If penalisation of an employee, in contravention of section 8A(5), constitutes a dismissal of the employee, as referred to in paragraph (a) of the definition of ‘penalisation’ in section 8A(16), the employee (or, in the case of an employee who has not reached the age of 18 years, the employee’s parent or guardian with his or her consent) may institute proceedings in respect of that dismissal under the Unfair Dismissals Acts 1977 to 2007 or to recover damages at common law for wrongful dismissal and, if the employee or his or her parent or guardian, as the case may be, does so, such dismissal may not be presented to a rights commissioner under paragraph 1(1). | ||
(b) If an employee (or, in the case of an employee who has not reached the age of 18 years, the employee’s parent or guardian with his or her consent) presents a complaint to a rights commissioner under paragraph 1(1) in respect of a dismissal referred to in clause (a), the employee or his or her parent or guardian, as the case may be, may not institute proceedings in respect of that dismissal under the Unfair Dismissals Acts 1977 to 2007 or to recover damages at common law for wrongful dismissal. | ||
Enforcement of determinations of Labour Court. | ||
4. (1) If an employer fails to carry out in accordance with its terms a determination of the Labour Court in relation to a complaint under paragraph 1 within 28 days from the date on which the determination is communicated to the parties, the Circuit Court shall, on application made to it in that behalf by— | ||
(a) the employee concerned (or, in the case of an employee who has not reached the age of 18 years, the employee’s parent or guardian with his or her consent), or | ||
(b) with the consent of the employee, any trade union of which the employee is a member, | ||
without hearing the employer or any evidence (other than in relation to the matters aforesaid), make an order directing the employer to carry out the determination in accordance with its terms. | ||
(2) The reference in subparagraph (1) to a determination of the Labour Court is a reference to a determination in relation to which, at the expiration of the time for bringing an appeal against it, no such appeal has been brought or, if such an appeal has been brought, it has been abandoned, and the reference in that subparagraph to the date on which the determination is communicated to the parties shall, in a case where such an appeal is abandoned, be read as a reference to the date of such abandonment. | ||
(3) In an order under this paragraph providing for the payment of compensation, the Circuit Court may, if in all the circumstances it considers it appropriate to do so, direct the employer concerned to pay to the employee concerned interest on the compensation (at the rate per annum standing specified for the time being in section 26 of the Debtors (Ireland) Act 1840 ) for each day or part of a day beginning 28 days after the day on which the determination of the Labour Court is communicated to the parties and ending on the day immediately before the day on which the order of the Circuit Court is complied with. | ||
(4) An application under this paragraph to the Circuit Court shall be made to the judge of the Circuit Court for the circuit in which the employer concerned ordinarily resides or carries on any profession, trade, business or occupation. | ||
Interpretation. | ||
5. Section 8A(16) shall apply to the interpretation of this Schedule as it applies to the interpretation of section 8A. | ||
SCHEDULE 2 | ||
PROVISIONS APPLICABLE IN CASE OF COMMUNICATIONS REFERRED TO IN SECTION 8A MADE IN CONFIDENCE | ||
Definitions. | ||
1. In this Schedule— | ||
‘alleged relevant offence’, in relation to a confidential communication, means the offence under the Prevention of Corruption Acts 1889 to 2010 alleged in the communication; | ||
‘appropriate person’ has the meaning assigned to it by section 8A(16); | ||
‘civilian’ means a member of the civilian staff of the Garda Síochána; | ||
‘Commissioner’ means— | ||
(a) the Commissioner of the Garda Síochána, or | ||
(b) a deputy commissioner, or an assistant commissioner, authorised under section 32 of the Garda Síochána Act 2005 to perform the functions of the Commissioner; | ||
‘confidential communication’ means a communication referred to in section 8A made to an appropriate person who is a confidential recipient; | ||
‘confidential communicator’, in relation to a confidential communication, means the person who made the confidential communication; | ||
‘confidential recipient’ means a person appointed under paragraph 2 to receive confidential communications; | ||
‘member’ means— | ||
(a) a member of the Garda Síochána, or | ||
(b) a member of the Police Service of Northern Ireland appointed to a rank in the Garda Síochána under section 52 or 53 of the Garda Síochána Act 2005 . | ||
Appointment of confidential recipients. | ||
2. The Commissioner may appoint a member or civilian, or members or civilians, as a confidential recipient or recipients to receive confidential communications. | ||
Confidential communication. | ||
3. (1) Where a confidential communication has been made to a confidential recipient, the confidential communicator shall disclose to the recipient any document, record or information in his or her possession or control which relates to the alleged relevant offence. | ||
(2) Information disclosed under subparagraph (1) shall be in such form as the confidential recipient may require. | ||
(3) A confidential communication may not be made anonymously. | ||
Transmission of confidential communication. | ||
4. Where a confidential communication has been made to a confidential recipient, the recipient shall, as soon as is practicable, transmit the communication to the Commissioner. | ||
Commissioner, etc., must take steps to ensure that identity of confidential communicator is not disclosed. | ||
5. Where a confidential communication has been transmitted to the Commissioner pursuant to paragraph 4, the Commissioner, and any person acting on his or her behalf, in examining the communication or investigating the alleged relevant offence, shall take all practicable steps to ensure that the identity of the confidential communicator is not disclosed. | ||
Protection of confidential communicator’s identity. | ||
6. (1) Where a confidential communication has been made to a confidential recipient, the recipient may disclose the identity of the confidential communicator to the Commissioner only if each one of the following provisions is complied with: | ||
(a) the Commissioner— | ||
(i) must be satisfied that knowledge of the identity of the communicator is necessary for the proper examination of the communication or the investigation of the alleged relevant offence; | ||
(ii) must inform the recipient of his or her reasons for being so satisfied; | ||
(b) the recipient must be satisfied that the Commissioner, before informing the recipient under clause (a)(ii), has taken all practicable steps to advance the examination of the communication or the investigation of the alleged relevant offence; | ||
(c) the recipient must have informed the communicator of the situation and considered the communicator’s views regarding the disclosure of his or her identity; and | ||
(d) the recipient must further be satisfied that, having regard to all the circumstances, the disclosure is necessary for the proper examination of the communication or the investigation of the alleged relevant offence. | ||
(2) Where a confidential communication has been transmitted to the Commissioner pursuant to paragraph 4, the identity of the confidential communicator may be disclosed by the Commissioner to— | ||
(a) a member, | ||
(b) a civilian, or | ||
(c) the Director of Public Prosecutions, | ||
only where the Commissioner is satisfied that the disclosure is necessary for the proper examination of the communication or the investigation or prosecution of the alleged relevant offence. | ||
(3) Subject to subparagraph (4), any member or civilian to whom the identity of a confidential communicator has been disclosed under subparagraph (2) may not disclose the identity to any other person without the authorisation in writing of the Commissioner. | ||
(4) The Commissioner may give an authorisation referred to in subparagraph (3) only where he or she is satisfied that it is necessary for the proper examination of the confidential communication or the investigation or prosecution of the alleged relevant offence. | ||
(5) Unless otherwise authorised under this paragraph, a confidential recipient, a member, or a civilian, to whom the identity of a confidential communicator has been disclosed may disclose the identity only with consent in writing of the confidential communicator or under an order of a court.”. |