ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00000456

Complaint(s)/Dispute(s) for Resolution:

Date of Adjudication Hearing: 06/01/2017

Workplace Relations Commission Adjudication Officer: Caroline McEnery

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and/or Section 8(1B) of the Unfair Dismissals Act, 1977 following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

Complainant’s Submission and Presentation:

• The Complainant was interviewed in February 2015 by the Director of Nursing [DN]. The Complainant was asked if she could start immediately. The Complainant commenced on the 14 March 2015. The Complainant found it initially very difficult to receive info regarding such issues such as receiving a contract, clarifications of break times on night duty, leave entitlements etc.

• The Complainant following some weeks of work with the Respondent began to have concerns regarding some of the practices that she observed.

• On 2nd June 2015 the Complainant found a resident “tied with a walking belt into an ordinary chair in her room with the door closed and in a very distressed state”.

• The Complainant immediately reported the incident to the Assistant Director of Nursing [ADN]. The Complainant completed an incident report in the incident book, recorded in patient file and the Communication Book.

• On June 5, 2015 the Complainant realised that the entry that she had written in the Communication Book had been removed. The Complainant was in disbelief at this practice and immediately wrote to DN regarding the incident. The Complainant was not formally responded to following her correspondence to DN and was verbally told that they were aware of who was responsible. DN informed the Complainant that the issued raised would be dealt with, but no feedback or details of changes made were given. The Complainants documentation in the Communication Book was never reinstated. This caused the Complainant serious concerns regarding on-going practice.

• Following this incident the Complainant perceived a marked change in attitude of management towards her. The Complainant was left uninformed about policy changes and other relevant information that was communicated to other members of staff. The Complainant was also denied computer access during this period. The Complainant began to feel “frozen out”.

• While on night duty in early September 2015 one of the Complainants colleagues approached her to state that a Staff Nurse [SN1] had, at a training session, stated to other staff that the Complainant “made mistakes”, that carers “should be careful when on duty with her” and an insinuation that the Complainant had made a medication error “recently”. SN1 is the former owner and former Director of Nursing of the nursing home. SN1 is the mother of the current owners/ DN, ADN and the General Manager [GM].

• When the Complainant was informed by her colleague of what was being said about her by SN1 she wrote to the DN following a conversation with her. In this correspondence the Complainant outlined her concerns.

• On the 21 September 2015 DN responded to this correspondence stating that following a “prolonged conversation with her mother SN1 that she denied ever making such comments”

• During this period and ongoingly the Complainant continued to raise concerns regarding certain practices. In her correspondence dated 21st September 2015 the Complainant specifically highlighted medication/dangerous drug procedures, training and qualification of certain staff and the lack of any supervision and appraisal of staff. DN in her reply did not address these concerns.

• On the night of the 21 October 2015 at approximately 9pm hours the Complainant was confronted by SN1 and was “verbally attacked” in full view of passers-by including other staff and family members of residents. The Complainant was told she “better be careful” and “how dare” she question whether certain practices are necessary or not. The interaction continued for approximately 10 minutes and the Complainant was “very shocked” and embarrassed by the interaction particularly due to where the conversation was held. The Complainant wrote once again, to DN to highlight the altercation.

• Due to the Complainants ongoing concerns regarding practice in the Respondents nursing home and the lack of response or action taken regarding her concerns the Complainant made contact with HIQA (The Health Information and Quality Authority).

• Initially by phone, seeking advice, on the 23 October 2015 anonymously and again the following day 24 October 2015 when the Complainant gave her name and details under protective disclosure. HIQA informed the Complainant that specific details would be of benefit to them. The Complainant gave this written submission to HIQA on October 27 2015. Following this HIQA made an unannounced inspection on 30 October 2015. The outcome was published in February 2016.

• At this point, believing she had no other option, the Complainant referred the issue to the WRC under section 13 of the Industrial Relations Act. This was a self-referral on the 6 November 2015.

• On the 25 November 2015 DN wrote to the Complainant requesting her to withdraw the referral. The Complainant responded stating that her main concerns regarding withdrawal was the several months without addressing the issue that had passed. Managements response to this letter was to send the Complainant a copy of the “grievance and disciplinary procedures” published by the Labour Relations Commission. No such procedures had been put in place prior to this.

• Throughout this period, the Complainant was under increased pressure due to the situation. She was advised by her doctor to take time off due to stress. Following sick leave and a period of booked annual leave, the Complainant returned to work on the 24 November 2015.

• In December and January the Complainant continued to highlight concerns. She received no response.

• On the morning of the 14 January 2016 at approximately 08.45am the Complainant was called “for a word” by GM whom requested that she talk to him on nursing matters and practice. The Complainant declined to take part in this meeting as she had: no advance notice of the meeting, no option to have representation, no time to prepare.

• The Complainant was then requested to attend a grievance procedure (a grievance procedure which she had not requested) via email dated Friday 15 January 2015 sent 4.08pm which was to be held on Monday the 18 January 2016. As the Complainant was away, she wrote to DN on the 19 January 2016 to communicate the incident which had taken place on the 14 January 2016 with GM. In this correspondence, the Complainant outlined how she had been treated and that the Complainant had felt “harassed and bullied” on the day in question.

• Between the 22 and 29 January 2016, while the Complainant was on already agreed annual leave and out of the country, she received correspondence from DN. It requested that the Complainant attend a disciplinary hearing on the 29 January 2016. This was requested even though management were aware that the Complainant was away on annual leave. This correspondence outlined several allegations made against the Complainant.

• At this point the Complainant was made aware of complaints made by other colleagues. All of these individuals had been subject to concerns raised by the Complainant previously, either to management or the HIQA. There were no statements or complaints from colleagues with whom she worked regularly.

• The Complainant was requested to attend again on the 4 February 2016 but was unable as she was certified unwell for work due to stress, from the 2 February 2016 to 16 February 2016 by her doctor.

• On the 4 February 2016 the Complainant received correspondence in triplicate from the employer notifying her that employment had been “terminated”.

• The Complainant stated that she was dismissed due to her giving a protective disclosure to HIQA and that these actions alone were the reason for dismissal. The Complainant suffered a great deal in the way that management dealt with the many concerns that she had raised regarding practice in the workplace and the potential ramifications of those poor practices. The Complainant required sleeping tablets while off sick due to stress and was prescribed anti-depressants for low mood. The Complainant suffered poor self-esteem due to the incident.

• The Complainant states that at no time did management attempt to resolve or address the issues at hand but instead attempted a campaign of misinformation in order to discredit The Complainant in the eyes of her colleagues.

• The Complainant states that there is no doubt that Management in Respondents nursing home were aware of the protective disclosure to HIQA had come from the Complainant as it clearly states in the HIQA report, “Prior to the inspection the Authority had been made aware of practices in the centre related to some residents care needs, which may have violated the personal bodily integrity of those residents", it goes on to say that "During the inspection, inspectors found evidence in documentation reviewed and staff interviews that these practices were taking place in the centre". This vindicates the Complainants Protective disclosure to the authority as being genuine and not a false disclosure.

• During the period in question, the Complainant initially attempted to resolve the issue within the organisation. When it became clear to the Complainant that this was impossible and that no attempts were being made to address the issues, this was when she made her disclosure.

• The code of Practice on Protected disclosures states that "Employers are given the opportunity to address issues arising at the earliest possible opportunity or where the discloser is mistaken or unaware of all the facts surrounding the issues raised, and to take the opportunity to assure the worker that his/her concerns are unfounded". In this instance Management did neither. The Complainant states that the manner in which she was dismissed was inconsistent with good or normal practice. The Complainant was: expected to attend a disciplinary meeting without the any notice, formal or otherwise, asked to attend two grievance procedures that she had not requested. , given no notice of the initial grievance as it was scheduled during a period where management knew she was not in the country.

• The Complainant was dismissed in her absence when she was not in attendance for the rescheduled meeting even though she was on certified sick leave from her General Practitioner.

• Not until her dismissal was the Complainant given any detail of complaints made against her and was given no opportunity to address the complaints made. When this documentation was received, the majority of the complaints appeared to be pre signed by one particular individual and post signed at a later time by the person who supposedly made the complaint. All complainants had been subject to concerns raised by the Complainant.

• The Complainant and her representation are of the belief that there was an orchestrated attempt to dispose of the Complainant from the Respondents nursing home as quickly as possible before she had reached one year in service. As stated in the letter of dismissal, “we retain the discretion to take into account your length of service with the company and vary the procedures accordingly”.

• The Complainant and her representation contend that the Complainant was dismissed due to her protective disclosure to HIQA.

• The Complainant and her representation contend she was not afforded proper procedures or due process.

Respondent’s Submission and Presentation:

• The Respondent acts as a nursing home and offers respite and convalescence care to its residents. The Complainant was employed as a staff nurse on 14 March 2015. The Complainant contract of employment was terminated for gross misconduct on 4 February 2016. The Complainant has less than one years’ service.

• The Complainant has brought a claim for Unfair Dismissal alleging that her dismissal was related to a Protected Disclosure that she made in October 2015.

• On 3rd June 2015 the Complainant raised concerns to DN in relation to an incident with a resident that occurred on 2nd June 2015. The Complainant made an entry in the Accident Report book in relation to this incident. DN investigated the matter and the Complainant confirmed that she was happy that the matter had been addressed.

• By e-mail of 21 June 2015 the Complainant outlined further concerns arising from the same incident.  DN spoke with the Complainant about this and considered that the matter had been addressed and was closed.

• The Respondent became aware that the Complainant had made a series of errors in relation to medication and the administration of eye drops. In particular, on 25 June 2015 the Complainant failed to comply with rules and procedures in that day staff found a tablet crushed on a resident’s bed. The Complainant was responsible for giving the resident the tablet. The errors were initially dealt with informally by SN1 who was acting as the Clinical Staff Nurse Manager while the Person in Charge, DN was on annual leave.

• The Complainant alleged that SN1 was spreading lies and gossip about her. By letter dated 22 October 2015 the Complainant raised concerns about harassment by SN1. The Respondent requested the Complainant to attend a meeting on 30 October 2015 to address the issues raised. The Complainant declined to attend.

• On 30 October 2015 the Respondent had an Inspection from HIQA. The Respondent claims that the Company is a stranger as to what prompted this inspection.

• On 6 November 2015 the Complainant lodged an Industrial Relations compliant before the WRC in relation to alleged bulling and harassment. Nowhere in this claim form does the claimant mention that she has made a Protected Disclosure or that there is any link between the alleged bulling and harassment and a Protected Disclosure made by her.

• By letter dated 25 November 2015 the Complainant was asked to attend an investigation meeting in relation to misconduct to be held on 27 November 2015. The Complainant failed to attend the meeting. In light of the Complainants failure to engage, on 14 January 2015 the Respondent asked the Complainant to attend an investigation meeting that day, and handed her a letter outlining the nature of the issues to be investigated. The Complainant walked out the meeting before it started. On 20 January 2016 the Respondent, in accordance with its’ legal obligation reported the Complainant to HIQA.

• After this meeting the Complainant sent an e-mail outlining concerns in relation to inter alia staffing levels.

• In response to this e-mail the Complainant was invited to a grievance meeting to be held on 19 and 20 January 2016. The Complainant advised that she did not wish to have the matters raised treated as a grievance. The Complainant was also invited to a grievance meeting on 29 January 2016. The Complainant was invited to a disciplinary meeting on the same date. She replied stating that the earliest date she would be available to attend any meeting would be 4 February 2016. The Respondent obliged and rescheduled the disciplinary meeting for 4 February 2016.

• The Complainant was also invited to attend a meeting on the same date, this meeting was to address the issues raised by the Complainant through an informal process, as requested by the Complainant. The Complainant advised that she was unable to attend because she was sick and there was inadequate time to prepare. In view of the fact that the Respondent had rescheduled the disciplinary meeting on more than one occasion the meeting was held as scheduled on 29 January 2016.

• By letter dated 4 February 2016 the Complainant was advised that she was dismissed with immediate effect for gross misconduct.  The reasons for the dismissal, as outlined in the letter include, failure to sign for administrating dangerous drugs to residents and withholding drugs from residents without consent. In addition in breach of An Bord Altranais guidelines the Complainant asked staff members to sign the Dangerous Drugs Administration book, having not counted the drugs.   The Complainant was given the right of appeal and did not appeal her dismissal.

• By e-mail on 5 February 2016 the Complainant ‘lodged a formal complaint’ in relation to the incident of 2nd/ 3rd June 2016 regarding a resident. This is despite the fact that by e-mail on 21 June 2015 the claimant stated ‘I was happy that when I told you about this matter the morning after it happened’. The Complainant advised that she had copied the complaint to HIQA, this was the first time the Respondent became aware that the Complainant had lodged a complaint with HIAQ about them. At no point since June 2015 had the Complainant indicated that she had lingering concerns in relation to this issue. In this e-mail the claimant outlined in detail an account of the events on 2 June 2015. There are a number of inconsistencies between the version of events as contained in the e-mail of 5 February 2016, the claimant’s letter to HIQA of 22 October 2015 and the claimant’s entry into the Accident Report book made at the time of the events. In particular, the contemporaneous entry the Complainant confirms that ’resident found in her room distressed and frightened because she couldn’t get up from the chair she was sitting on at the time’. However in the version of events contained in the e-mail of 5 February 2015 and the letter of 22 October the claimant states that the resident was strapped into an armchair with a belt. In response to this letter the Respondent carried out an investigation and forwarded the results to the Complainant.

• HIQA published their report on 12 February 2016, there was a report in the Irish Examiner Reported on 14 February 2016. Two days later on 16 February 2016 the Complainant lodged a complaint with the WRC alleging her dismissal was related to the Protected Disclosure.

• The Respondent refutes the allegation that the Complainant’s dismissal was in any way linked to the compliant made by her to HIQA, or the issues raised by the Complainant to the Respondent. The Complainant’s dismissal was solely based on the serious and dangerous breaches of procedure made by the Complainant. The first time the Respondent became aware that Complainant had made a complaint to HIAQ was when she told them she had by e-mail on 5 February 2016.  

• The Complainant states that ‘between March 2015 and October 2015 I raised several observations and concerns with my employer regarding areas of poor standards of care, health and safety matters and areas of malpractice’. It is submitted that any issues raised by the Complainant during this period were of a minor nature and did not fall within the meaning of ‘relevant information’ as defined in section 5 (2) of the Protected Disclosures Act.

• It is further noted that the Complainant, in failing to attend the investigation hearing and in failing to attend the disciplinary hearing and in failing to submit an internal appeal, has at no stage made out her defence to the allegations in question to date and, indeed, the first time these defences will be heard will be before the WRC. It is submitted that this is entirely unacceptable conduct from the Complainant.

• In the event that the Adjudicator finds the Complainant has proved her case, which is strongly contested by the Respondent, the Respondent submits that the investigation of the relevant wrongdoing concerned was not the sole or main motivation for making the disclosure. This is particularly so given the inconsistencies between the various versions of events of 2nd June given by the claimant and the fact that the Complainant has made a subsequent complaint to an Gardaí Síochana regarding the respondent, that compliant was found to be unfounded.  

• It is submitted that the Complainant has made an erroneous attempt to attribute her dismissal to her a Protected Disclosure when in fact her dismissal was due to her gross misconduct.

Decision:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 8(1B) of the Unfair Dismissals Act, 1977 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

Issues for Decision:

The Complainant is seeking for the Adjudicator to find if her dismissal was unfair and if it was as a result of her making a protected disclosure to HIQA.

It is for the Adjudicator to decide the preliminary matter initially that the claim has already been disposed of. In relation to this preliminary matter the Adjudicator is satisfied that this case is correctly before the Workplace Relations Commission to be heard in line with the legislation.

It is then for the Adjudicator to decide the substantive matter as to whether this dismissal was unfair or not. As the Complainant does not have twelve months of service I need to consider if her dismissal was linked to her making a Protected Disclosure to HIQA in line with the Protected Disclosure’s Act and then to decide if it was a fair dismissal.

Legislation involved and requirements of legislation:

Section 8 of the Unfair Dismissals Act, 1977

8.—(1) A claim by an employee against an employer for redress under this Act for unfair dismissal may be brought by the employee before a rights commissioner or the Tribunal and the commissioner or Tribunal shall hear the parties and any evidence relevant to the claim tendered by them and, in the case of a rights commissioner, shall make a recommendation in relation to the claim, and, in the case of the Tribunal, shall make a determination in relation to the claim. 

Section 6 (1), 6(2) and 6(2ba) of the Unfair Dismissals Act, 1977

1. Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.

2. Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal if it results wholly or mainly from one or more of the following:

   the employee having made a protected disclosure

    

   Section 5 of the Protected Disclosures Act states the definition of a protected disclosure

   (1) For the purposes of this Act “protected disclosure” means, subject to subsection (6) and sections 17 and 18 , a disclosure of relevant information (whether before or after the date of the passing of this Act) made by a worker in the manner specified in section 6 , 7 , 8 , 9 or 10.

    

   Section 2 of the legislation defines relevant information

   (2) For the purposes of this Act information is “relevant information” if—

   (a) in the reasonable belief of the worker, it tends to show one or more relevant wrongdoings, and

   (b) it came to the attention of the worker in connection with the worker’s employment.

    

   Section 3 confirms what a relevant wrongdoing is:

   (3) The following matters are relevant wrongdoings for the purposes of this Act—

    

   (a) that an offence has been, is being or is likely to be committed,

   (b) that a person has failed, is failing or is likely to fail to comply with any legal obligation, other than one arising under the worker’s contract of employment or other contract whereby the worker undertakes to do or perform personally any work or services,

   (c) that a miscarriage of justice has occurred, is occurring or is likely to occur,

   (d) that the health or safety of any individual has been, is being or is likely to be endangered,

   (e) that the environment has been, is being or is likely to be damaged,

   (f) that an unlawful or otherwise improper use of funds or resources of a public body, or of other public money, has occurred, is occurring or is likely to occur,

   (g) that an act or omission by or on behalf of a public body is oppressive, discriminatory or grossly negligent or constitutes gross mismanagement, or

   (h) that information tending to show any matter falling within any of the preceding paragraphs has been, is being or is likely to be concealed or destroyed.

    

   Schedule 2 (1) (4) of the Protected Disclosures Act states:

   ‘In determining the amount of compensation that is just and equitable in a case in which the investigation of the relevant wrongdoing concerned was not the sole or main motivation for making the disclosure, the amount that would be just and equitable may be up to 25 per cent less than it would otherwise be.’

    

   Section 12(1) of the Protected Disclosures Act provides that

   “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 having made a protected disclosure”. 

Decision:

LINKAGE:

The Adjudicator needs to consider the protected disclosure made. The Complainant witnessed and reported internally a concern in regards to a patient incident on the 2 June 2015. The Complainant initially contacted HIQA on the 23October 2015 as her concerns were not addressed internally. The Complainant contacted HIQA formally on the 24 October 2015. An investigation followed in relation to clinical concerns and the patient incident that occurred on the 2June 2015. It is clear that the Complainant raised concerns both internally and to HIQA in relation to patient care in line with the protected disclosure legislation. Therefore, the Adjudicator can confirm that a protected disclosure was made as per the definition in the legislation. There is a link that needs to be investigated.

The Adjudicator confirms that firstly, a protected disclosure has been made under the definitions of the legislation. The Adjudicator will then examine whether penalisation within the meaning of the protected disclosure has occurred.

The Adjudicator will examine the same on the “but for” test in determining whether penalisation has occurred i.e. “but for” having made the disclosure, the Complainant would not have suffered the detriment complained of.

SERVICE:

The Complainant was short of her 12 months service having been employed since the 14 March 2015 and dismissed on the 4 February 2016. The Adjudicator believes that a fair dismissal in this case would have not have been conducted in the Complainants absence due to the serious nature of the allegations. In addition the dismissal would have followed the rules of natural justice and due process.

Based on the evidence It is the Adjudicators opinion that the Respondent commenced and instigated the disciplinary procedure in an attempt to dismiss the Complainant in advance of her reaching her 12 months of service with the Company as a result of her protected disclosure to HIQA.

PREVIOUS ISSUES:

The Complainant commenced work with the Respondent on the 14 March 2015. There were no employment related matters until the Respondent gave the Complainant a letter outlining serious performance concerns including to an invitation to an investigation meeting on the 25 November 2015. The Complainant denies ever receiving such a letter. The date this letter is alleged to have been sent is the date that the DN wrote to the Complainant asking her to withdraw her complaint made to the WRC. This letter was allegedly given after ongoing concerns raised by the Complainant, after a protected disclosure was made and after an unannounced inspected by HIQA.

The Respondent did not produce any further documentation or proof as to why there was no follow up with the employee via letter confirming nonattendance or failure to engage between the 25 November 2015 and the 14 January 2016. This timeline is protracted and the Respondent, had the issues been pressing to correspond to ‘misconduct’, should have had a documented paper trail of follow up invitations had the Complainant been invited as they have alleged. On the 31 December 2015 and the 14 January 2016 the Complainant submitted two further letters/emails to the Respondent relating to the new breakfast menu and staffing levels and other concerns at night. The Complainant was attending for work at the time therefore the lack of action on behalf of the Respondent it is not plausible.

In light of the conflicting information present the Adjudicator is of the belief that the Complainants evidence is more compelling based on the above explanation and confirms that the Complainant was not invited, as per the evidence of the Respondent, to an investigation relating to misconduct.

RULES OF NATURAL JUSTICE:

On the 14 January 2016 the Complainant was requested for “a word” with the GM to discuss nursing matters and practise. The Complainant refused to participate as she had no advance notice, no option for representation and no time to prepare. The Adjudicator was not provided with evidence or proof of the agenda of the meeting and had an ‘investigation’ into misconduct been ongoing since the 25 November 2015 as claimed by the Respondent it is incomprehensible that the Complainant would have been invited to such an impromptu meeting with a clear lack of adherence to the basic principles and rules of natural justice.

The Respondent continued to state that in light of the Complainants failure to engage on the 25 November 2015, on the 14 January 2016 the Complainant was asked to attend an investigation meeting the following Monday 18 January 2016, and handed her a letter outlining the nature of the issues to be investigated. This meeting purported to be a grievance meeting but the Complainant had not raised a complaint via the Grievance Procedure.

The Complainant received an invitation to a disciplinary investigation meeting to be held on the 29January 2016. The Complainant was on annual leave when she received this letter. The Complainant asked for the meeting to be rescheduled to facilitate representation. Following this the Complainant was certified as unfit for work from the 2February 2016 until the 16February 2016.   During this time the Respondent conducted the disciplinary in the Complainants absence and the Complainant was summarily dismissed on the 4February 2016.

It is clear that the Complainant received two invitations to disciplinary investigation meetings. The Complainant was on annual leave and could not source representation in time to attend the first meeting. The Complainant was on certified sick leave and could not attend as a result to the second disciplinary meeting that was scheduled. As a result the disciplinary investigation was conducted in her absence and the Complainant was found guilty of gross misconduct.

On the 20 January 2016 the Respondent reported the Complainant to HIQA. It is incomprehensible that the allegations outlined in the invitations of the 29 January 2016 and the 4 February 2016 were similar to those outlined in the invitation of the 25 November 2015 but no reporting was made on behalf of the Respondent to HIQA at the earlier time. In this respect I find it unfathomable that the Respondent would have allowed the Complainant to continue working, rather than suspension with pay, from the 25 November 2015 when it is reported to have been issued to the employee.

It is normal procedure to ensure that an employee is certified fit and able to participate in an investigation whilst out on certified sick leave. This did not occur and I find that the Complainant was dismissed without having the right to respond to the allegations against her.

The Respondent did not establish that any of the actions taken against the Complainant, who made the protected disclosure, is not connected to the disclosure itself. The Complainant in the Adjudicators opinion raised many concerns in regards to the manner in which the Respondents nursing home ran and as a result I find that the Respondent invoked a purposeful fact finding mission to instigate the disciplinary procedures against her.

The Adjudicator therefore finds that had it not been for the protected disclosures made by the employee, she would not have been subject to disciplinary proceedings including dismissal and I find that this was an unfair dismissal. It is evident that there was no disciplinary or performance commenced until after the Complainant made the protected disclosure 

EXHAUSING INTERNAL PROCEDURES:

In the case the Complainant failed to appeal her dismissal and declined to exhaust the internal appeals process. The Complainant has an obligation to exhaust the internal disciplinary process prior to seeking to enforce her rights externally. However, based on the submissions and presentations on the day I am of the belief that the Respondent had a lack of trust in the process considering the involved of family members, the lack of proper procedures and due process including her dismissal during certified sick leave.

TO CONCLUDE:

I have investigated the above complaints and make the following decision in accordance with the relevant sections of the Acts set out above and the following are my conclusions:  

• Based on all of the evidence presented I find this dismissal is an unfair dismissal as the rules of natural justice were not followed and is clearly linked to the protected disclosure this employee made to HIQA.

• In relation to the compensation the employee has not been employed since her dismissal and has made efforts to gain employment and is on a HSE panel. I award the employee 2 year’s salary in compensation which equates to €52,416. This award is compensation and is not taxable.

Dated:   22^nd March 2017