Complainant

Respondent

Anonymised Parties

A Carer Assistant

A Nursing Home

Representatives

Mr. Seamus Ruane B. L. instructed by O'Hara Solicitors.

Peninsula Group Limited

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Part 14 Section 103(55M) of the Health Act, 2007

CA-00014813-001

06/10/2017

The Complainant claims that she made a number of protected disclosures and following this she was unfairly charged with gross misconduct and dismissed. She claims that this amounts to penalisation for her making protected disclosures to the Respondent.

The Respondent said that the Complainant was investigated for a complaint raised by one of its residents under its care. The incident was deemed to be gross misconduct and she was dismissed accordingly. It said there were no protected disclosures as provided for under the Act and no case of penalisation.

The following is a summary of the Complainant’s case.

The Preliminary Matters

The Respondent raised a preliminary matter in relation to the named respondent on the complaint form; where it said that the Complainant has named its “trading name” as the respondent in this case. The Respondent said that its trading name is not a legal entity and therefore the complaint should not be allowed to proceed against the legal entity. The Complainant said that she was always dealing with the named Respondent and for all intended purposes that was her employer. The Complainant said that the Respondent has not been prejudiced in any way; it is present to defend the case and the name of the Respondent should be amended accordingly.

The Complainant said that the Workplace Relations Commission (WRC) has jurisdiction to hear this case and that the case made out under the Protected Disclosures Act 2014 is correctly before me for adjudication.

The Complainant’s legal team said that it encountered difficulties in lodging the complaint online with the Workplace Relations Commission and sought advice how to properly file the complaint from the WRC and it is clear the complaint was received.

In relation to the time limits, the Complainant claims that she was dismissed on 4 April 2017 however, she was paid on 12 April and the decision on her appeal was not issued until 29 May 2017 and therefore, the complaint was lodged within the time.

The Substantive Matter

The Complainant was employed as a Care Assistant in the Respondent’s nursing home under a written contract of employment dated 29 September 2016, albeit the deed of contract specifies that her employment began three days earlier. She was paid €9.15 per hour and worked a 48-hour week, meaning a gross salary of €22,838.40.

The Respondent's nursing home is situated in the west of Ireland and is owned by a married couple.

The Complainant’s contract of employment provided for a six-month probationary period: the employer purported to have the power to summarily dismiss her at its discretion - effectively without notice- within that probationary period, which could be extended up to nine months, any such extension also being at the employer's discretion.

In the course of her employment, no complaint was ever made about the Complainant 's work, and the Complainant was never subjected by the Respondent to any warning, in respect of any matter whatsoever for a period of almost six months until 12 March 2017. Significantly, during that period, on separate occasions the Complainant said she had reason to express her concerns to management, specifically to Ms. A, co-owner, about several dangerous shortcomings or problems she had perceived at the nursing home.

Protected Disclosures:

There were a number of events of which she made reports of what the Act would describe as relevant wrongdoing:

A. The Complainant notified Ms. A about discovering that a resident had suffered a black eye, and she drew attention to this. However, so far as the Complainant is aware, no investigation or remedial action was ever undertaken in respect of this serious injury.

B. The Complainant notified Ms. A that a resident in the day-room was dehydrated because they were not being given water. However, as far as the Complainant is aware no investigation or remedial action was undertaken in this regard either.

C. The Complainant also notified Ms. A in relation to an incident in which a resident was being raised with a hoist in a manner that was causing the resident obvious pain and distress. Mr. C, the Head Carer, was also present.

D. In or about late October 2016 the Complainant reported to Ms. A that a resident had been bullied and verbally abused by another resident. Nothing was done except her medication was changed.

E. In or about early November 2016 the Complainant noted that a resident was not eating his meals in the dining room and was losing weight. The Complainant asked Ms. A if she could give him his meals in his own room which was approved and then some days late reversed. Shortly after he became dehydrated and was rushed to hospital for treatment by rehydration.

F. In or about December 2016 the Complainant reported to Ms. A at the nurses' station that a double dose of medication was erroneously left for the resident. Ms. A was angry with the Complainant for raising her concerns.

G. In or about late January 2017 the Complainant voiced her concern that the residents in the dayroom were not getting enough to drink and that there was a real danger of dehydration. Subsequently the Complainant was summoned to the office by head of nursing Ms. B and told that other staff were unhappy with her. No steps were taken to ensure that the residents were kept regularly hydrated.

H. In or about late February 2017 the Complainant disclosed to Ms A that one of the home residents who was effectively bed-ridden, had been left without a working T.V. for a week.

I. In or about October 2016 the Complainant disclosed to Ms B that another carer had been bullying and harassing an elderly resident. The Complainant's disclosure was not received well and was effectively ignored.

J. In or about November 2016 the Complainant once again disclosed to Ms. B about the same carer was wrongfully and aggressively feeding a resident.

She said that subsequently in February 2017 that carer assaulted her while passing her in a corridor, when he deliberately and forcefully pushed against her shoulder and pushed her against the wall. The Complainant made a complaint of this assault to Ms B, but never heard anything further from management in relation to this very serious disclosure.

K. In or about late October 2016, the Complainant disclosed her concerns to the Respondent's head carer, about a different carer who she claims bullied and mistreated a resident.

In light of her previous disclosures, the Complainant said that everything she said got her into trouble and had gone against her in the home. She said she never saw any positive outcome in relation to her disclosures.

The Complainant said that in the case of each of these disclosures, there is a presumption that the disclosures are protected disclosures under Section 5(8) of the 2014 Protected Disclosures Act. The Complainant's sole concern was for the health and safety of the residents in the Respondent's nursing home. This was a real and legitimate concern which should have been addressed urgently by the Respondent but was ignored on each occasion.

The Complainant claims that having failed to elicit any improvement in the Respondent's approach to the residents' health and safety, the Complainant made reports which constitute protected disclosures to HIQA in February and March 2017.

The Complainant said that the 2014 Protected Disclosures Act defines a protected disclosure as a disclosure of relevant information made by a worker to her employer or to HIQA, where the worker comes by that information in the course of her employment and reasonably believes that there is or has been wrongdoing or that a person's health or safety has been endangered or is likely to be endangered. She said that each of these complaints is a protected disclosure within the meaning of that legislation, and in particular Section 5.

The Complainant 's repeated disclosures were not appreciated by the management of the Respondent and she contends that she was victimised and penalised by the Respondent’s management as a direct result of the disclosures and that the management dismissed her as a retaliation for these disclosures, using a complaint by one of the residents as a pretext for the dismissal.

Dismissal:

The Complainant said that on Sunday, 12 March 2017, she was looking after a resident when she was requested by a fellow carer, to attend to another resident, who was going out of the nursing home later that day visiting her sister and she was anxious to be dressed and ready for the visit. She said that this resident was known to be rather a difficult lady and she had previously had issues with a number of other staff members, albeit not with the Complainant. The Complainant helped the resident to wash and get dressed for the visit, and this involved a change of clothes and shoes.

It appears that the resident subsequently made a complaint about the Complainant to another carer and to her sister. A formal complaint was subsequently lodged on the following Wednesday 16 March 2017. The Complainant was suspended as soon as she came to work.

She said the initial hearing on 30 March 2017 was clearly quite unfair, as evidenced by the published finding prepared by Ms A. It was clearly biased and in conflict with natural justice, with the co-owner Ms. A accepting any evidence critical of the Complainant, while abruptly dispensing with any evidence, explanation or response that she offered. The Complainant was clearly assumed from the start to have been guilty of all charges made against her.

She said the appeal hearing was carried out on 28 April 2017 by the husband of the chairperson of the first hearing, so the procedure cannot even be described as having the appearance of an independent review. She said that from the notes presented in evidence it is clear that the hearing was neither fair nor independent. The Complainant said the sanction of summary dismissal is unduly harsh and excessive, involving a first finding of wrongdoing which cannot reasonably be described as abusive or gross misconduct. The Complainant was told by letter dated 29 May 2017 that her appeal was unsuccessful, and her dismissal was upheld. The letter was received the following day 30 May 2017 and therefore she said this was the date of her dismissal.

Since her dismissal the Complainant has made several efforts to obtain alternative employment in other nursing homes. These efforts have been stymied by the Respondent's refusal to furnish any positive reference, and the Complainant has thereby been unable to secure any new employment within her chosen career as a nursing home carer despite having secured some positions subject to receipt of such a reference from the Respondent.

The Complainant, in support of her case, referred to the recent case of ADJ-00004519, where the adjudicator made a finding of penalisation arising from the employer's verbal warning to the whistle-blower employee, and awarded the employee the sum of €10,000 and ordered the removal of the disciplinary sanction.

The Complainant claims that the complaint made against her was treated as gross misconduct only

as a result of the employer's agenda to be rid of her because of her disclosures. The disciplinary hearing was fundamentally flawed, and the disciplinary action taken was out of all proportion to the alleged misconduct. The Complainant submits she was dismissed wholly or mainly as a result of the protected disclosures that she had made.

The following is a summary of the Respondent’s case.

The Preliminary Matters

The Respondent said that the Complainant’s claims that she was penalised for having made protected disclosures within the meaning of section 103(55M) of the Health Act 2007 are unfounded and denies that she was dismissed and/or subject to an unfair disciplinary procedure leading to dismissal due to having made those protected disclosures.

The Respondent denies that the Complainant was penalised and makes the following points:

a. The Complainant referred the complaint under section 103(55M) of the Health Act 2007 (this is inserted into the Health Act 2004). To the extent that the Complainant now seeks to raise arguments relating to the Protected Disclosures Act 2014, it is submitted that the Adjudication Officer has no jurisdiction to hear those complaints.

b. The Respondent said that the Complainant was dismissed by letter dated 4 April 2017, and that is the only apposite date for calculation of the time periods. Therefore, the complaint has been lodged more than six months after the relevant date and is consequently statute barred. The Respondent said that no application has been made to extend the time beyond that.

The Respondent said that the Adjudication Officer can only consider jurisdiction to hear complaints under the Health Act 2007 as referred by the Complainant and not the Protected Disclosures Act 2014.

Section 41(1) of the Workplace Relations Act 2015 provides:

“An employee (in this Act referred to as a “complainant”) or, where the employee so consents, a specified person may present a complaint to the Director General that the employee’s employer has contravened a provision specified in Part 1 or 2 of Schedule 5 in relation to the employee and, where a complaint is so presented, the Director General shall, subject to section 39, refer the complaint for adjudication by an adjudication officer.”

It said that the Complainant has presented a complaint under Section 103(55M) of the Health Act 2007. On a plain reading of the above section it is that complaint which the Director General has referred and therefore only that complaint that the adjudication officer has jurisdiction to adjudicate upon.

The Protected Disclosures Act 2014 further amends the Health Act by adding section (1A) so that that section reads as follows:

“55M (1) An employer shall not penalise an employee for making a protected disclosure. (1A) Subsection (1) does not apply where the protected disclosure is a protected disclosure within the meaning of the Protected Disclosures Act 2014.”

While this amendment disapplies section (1) in the circumstances outlined, it does not create a jurisdiction for an adjudication officer to adjudicate upon a complaint not referred.

The Respondent said that the Workplace Relations Commission derives its powers from legislation. Employment Law (2nd Ed, Bloomsbury, 2017) notes as follows:

‘[The jurisdiction of statutory bodies] is ‘found solely within the provisions of the enabling Act’. They have ‘no inherent capacity’ and they are bound by what has been coferred on them. They have ‘no further competence’, and cannot create, add to or enlarge the jurisdiction so vested’ in them. They are bound by what jurisdiction they have ‘and must act accordingly’.

The Respondent said that a claim under the Health Act 2007 is statute barred. The Complainant was dismissed on 4 April 2017 and the complaint was received on 6 October 2017 which is outside the 6-month time limit provided in Section 41(6) of the 2015 Act. The Respondent said notwithstanding the Complainant’s now claiming that the case is more proper to the Protected Disclosures Act 2014, the claim under the Protected Disclosures Act 2014 was never made and was only introduced for the first time by the Complainant’s legal team when submissions were furnished to the WRC in January 2018.

The Substantive Matter

The Respondent is a nursing home, where the Complainant was employed as a care assistant from September 2016 until her employment was summarily terminated on 4 April 2017 on the basis of gross misconduct.

The Respondent said that the Complainant’s claims that she was penalised for having made protected disclosures within the meaning of section 103(55M) of the Health Act 2007 are unfounded and denies that she was dismissed and/or subject to an unfair disciplinary procedure leading to dismissal due to having made those protected disclosures.

The Respondent denies that the Complainant was penalised and said it is not aware of any protected disclosures within the meaning of the 2007 Act.

The Respondent said that there were no protected disclosures within the meaning of the Health Act 2007 made by the Complainant to the knowledge of the Respondent. It claims that an exhaustive list of types of protected disclosures is provided in sections 55B to 55G of the 2007 Act.

It said that Section 55B relates to disclosures to an ‘authorised person’, that is, someone appointed under section 55H(3) of the Act. The Respondent said that the Complainant does not claim to have made such a disclosure. Section 55C relates to disclosures to the Chief Inspector of Social Services. The Respondent said that the Complainant does not claim to have made such a disclosure. Section 55D relates to disclosures made by employees of persons providing mental health services. The Respondent said that this is not the case here as there is no mental health services connection. Section 55E relates to disclosures made to a professional regulatory body as designated in the Act. The Respondent said that the Complainant does not claim to have made such a disclosure. Section 55F relates to applications made under specific statutory provisions. The Respondent said that the Complainant does not claim to have made such a disclosure. Section 55G relates to disclosures to HIQA under certain statutory provisions.

The Respondent said that only section 55G(a)(ii) could apply to any disclosure allegedly made by the Complainant. However, the Complainant has not provided any evidence to substantiate the making of such a disclosure. The first time the Respondent became aware of an alleged disclosure to HIQA by the Complainant was upon receipt of the Claimant’s submissions on some date after 24 January 2018. This was not disclosed to it and there was no HIQA investigation. Therefore, the Complainant’s dismissal was not penalisation for having made a protected disclosure.

In relation to the claims made under the 2014 Protected Disclosures Act, the Respondent said, without prejudice to the preliminary matters it has raised in relation to this above, that the following is its response to the matters put forward.

A. The first alleged disclosure related to a resident with a black eye. This matter was reported by

the nurse and not by the Complainant. It was therefore not a protected disclosure (within the meaning of the 2014 Act).

B. The second alleged disclosure related to the allegation that residents in the day-room were being

left dehydrated. It is submitted that it was not the reasonable belief of the Claimant that

the residents were routinely being left dehydrated.

C. The third alleged disclosure related to misuse of a hoist causing pain to a resident. The

Respondent has no record of any such disclosure and the employee mentioned in the Complainant’s

submissions in this regard Mr. C, similarly has no recollection of the alleged event. It is submitted that no such disclosure was ever made.

In relation to the other protected disclosure (d to k below) the Respondent stated that these were not referred to in the Complainant’s original submission and were first mentioned at the hearing of 25 January 2018. That hearing was adjourned to allow the Complainant to furnish details of the alleged protected disclosures. The details were not forthcoming until 28 March 2018. In the circumstances the Respondent invited the Adjudication Officer to draw such inferences as deems appropriate from the long delay in presenting this further information.

D. There is no disclosure of any kind in relation to the incidents described, a report of the above events was made by Ms B and not the Complainant. There was no relevant wrongdoing, or information one could reasonably believe tended to show a reasonable wrongdoing had taken place. The two residents knew each other and had a history. The Complainant had the facts of the case in reverse.

E. Ms. A said she has no recollection of this alleged disclosure. She said carers and nurses monitor the clients at every meal time and if a resident is finding the dining room overstimulating, they are offered alternatives. Residents’ weight is regularly monitored by nursing staff. The Respondent confirmed that the resident had no admission to hospital in November 2016. He has never been treated for dehydration or hospitalised for dehydration.

F. The Complainant had no grounds upon which to form a reasonable belief that the residents’ health and safety was likely to be endangered. The resident is fully lucid and is capable to choose to take specific medication at a time to suit her. On the day that the Complainant noted the medication she followed the correct procedure by handing over the information. It was then dealt with by the appropriate person. She was informed accordingly. It is part of the everyday operation and part of the job of a care assistant to be alive to potential risks to residents and it is therefore excluded from the definition of a Protected Disclosures by section 5(5) of the 2014 Act.

G. The Respondent said that these comments were made at a meeting. Ms B, head nurse was satisfied that there was no clinical evidence of dehydration. The other care assistants in the meeting took umbrage with the Complainant’s assertion that they were not performing their duties. A further meeting was held, and Ms B told the Claimant: ‘if [you] thought drinks were an issue for her there were many other ways of saying it so as not to alienate the team which she had obviously done that day.’

H. Ms. A has no recollection of this interaction. She said that the Complainant’s statement that the resident is bed ridden is false, that the resident is not a bed ridden resident. There is a system in place for reporting maintenance issues for repair.

I. The Complainant did report to Ms A that a Carer was listening to music on his phone while getting a resident up, but she did not report that he was upset or distraught. Subsequently in evidence the Complainant confirmed that she had not seen this happening again.

J. No disclosure of this nature was made to Ms. B. It said that Ms. B has observed the two named persons interact, including during meals times and they have a great friendship and rapport. Ms. B said she has no recollection of a complaint being made by the Complainant in the nature of assault, it would have been discussed with the proprietor and would have been investigated.

K. The Head Carer said he does not recall any disclosure of this nature.

The Dismissal:

The Respondent said that the Complainant was not dismissed because of a protected disclosure. It said that an allegation of elder abuse by neglect was made against the Complainant by one of its residents. The Complainant had attended all the Elder Abuse training and ought to have been aware that neglect fell within the definition of elder abuse. It said that clearly elder abuse is a very grave matter and is treated very seriously by the Respondent.

The Respondent points to its employee handbook where it gives an example of gross misconduct as ‘deliberate neglect of care standards.’

The Respondent said that this allegation was investigated and following the investigation the Complainant was invited to a disciplinary hearing where she was invited to respond to the allegations made against her.

The Respondent said that having considered all the facts it came to the conclusion that there had been gross misconduct and that the Complainant should be dismissed. It said that the Complainant was dismissed due to gross misconduct, not due to any protected disclosures.

The Respondent referred to Tony and Guy Blackrock Limited v O’Neill [2016] ELR the Labour Court stated, in relation to disclosures made under the Safety, Health and Welfare at Work Act, 2005, that:

‘It is necessary for a claimant to establish that the detriment of which he or she complains was imposed ‘for’ having committed one of the acts protected by subs. 3. Thus, the detriment giving rise to the complaint must have been incurred because of, or in retaliation for, the claimant having committed a protected act. This suggested that where there is more than one causal factor in the chain of events leading to the detriment complained of the commission a protected act must be an operative cause in the sense that ‘but for’ the claimant having committed the protected act he or she would not have suffered the detriment.’

This Respondent said that the test was endorsed in relation to the Protected Disclosures Act in Aidan & Henrietta McGrath Partnership v Anna Monaghan PDD126.

In relation to the disciplinary process the Respondent said that all fair Procedures were followed in line with its policy.

a. The Complainant was advised of her right to be accompanied at each stage and exercised this right at the disciplinary hearing;

b. The Complainant’s arguments were listened to and given due consideration;

c. The evidence was weighed up in a rational manner;

d. Gross misconduct was an appropriate finding were the allegation was elder abuse in a nursing home;

e. Neglect of the type identified falls within the definition of elder abuse contained in the elder abuse training that the claimant had attended;

f. The appeal was held by an independent party – namely the second proprietor who is not involved in the day to day business of running the nursing home.

The Respondent said that the Complainant has failed to make out any of the grounds upon which she claims she was unfairly dismissed.

Preliminary issues

Naming the Respondent

I must first decide whether the Respondent named on the complaint referral form can be changed to the correct name of the Complainant’s employer. The Respondent said that the name used is its trading name and is not a legal entity. The Complainant said this was the name that was used in all the interactions with her, as an employee, and there is no prejudice on the parties to correct the forms.

In making my decision I am guided by the Superior Courts which have held that statutory adjudicative bodies should not adopt a more stringent procedural approach than that adopted in ordinary litigation. Order 15, Rule 13 of the Rules of the Superior Courts (S.I. No. 15 of 1986) makes provision for the amendment of proceedings initiated in the High Court in which parties are improperly named.

I also note in County Louth VEC –V- Equality Tribunal [2009] IEHC 370, the High Court found that:

“If it is permissible in court proceedings to amend pleadings where the justice of the case requires it, then, a fortiori, it should also be permissible to amend a claim as set out in a form such as an originating document before a statutory tribunal, so long as the general nature of the complaint remains the same.”

I note that it is the Respondent who has sought to prevent the change of name. In this regard it was not made clear why the Respondent would be prejudiced by correcting the WRC form. I note all the documentation presented by the parties refer to the named Respondent on the WRC form and there is no reference to the name of the legal entity. I note that the WRC forms are not statutory forms and from the case law noted above there is scope to allow for a less stringent procedural approach than that adopted in ordinary litigation. I find, therefore, that neither party to the claim would be prejudiced by allowing the amendment of the name as requested. Accordingly, I amended the name of the Respondent on the complaint referral form to reflect the legal entity.

The Relevant law and the time limits

The Respondent said that the Complainant has presented her case that she was penalised for having made protected disclosures within the meaning of section 103(55M) of the Health Act 2007. This complaint was lodged with the WRC on 6 October 2017. Section 41(6) of the Workplace Relation Act 2015 sets the time limit for lodging a complaint. It said the Complainant was dismissed on 4 April 2017. The complaint should have been received at the WRC by 3 October 2017 at the very latest, it was not received until 6 October 2017 and is therefore out of time.

The Complainant’s legal representative said that on filing the original complaint with the WRC it had some difficulties with the online system in particular the “drop down menu” and sought advice from the WRC at the time on how to lodge this complaint. Accordingly, this should be taken into consideration.

On the day of the hearing the Complainant has sought to pursue her case under the Protected Disclosures Act 2014 rather than under section 103(55M) of the Health Act 2007 and started to present arguments relating to the Protected Disclosures Act 2014. The Respondent said that these are two separate pieces of legislation and cannot be interchanged. The Respondent said that to the extent that the Complainant now seeks to raise a case relating to the Protected Disclosures Act 2014 the Adjudication Officer has no jurisdiction to hear such complaints.

The Complainant claims that I do have jurisdiction to investigate and adjudicate on the facts under the Protected Disclosures Act 2014.

In essence there are two preliminary questions that are intertwined that need to be addressed and answered here. Should I find in favour of the Complainant I then shall address the substantive case. However, should I find in favour of the Respondent, I will be determining that I have no jurisdiction to adjudicate on the substantive case.

In relation to the argument that the case is proper to be considered under the Protected Disclosures Act 2014 rather than the section 103(55M) of the Health Act 2007. I am satisfied that there is a distinct difference. I note that the Complainant was legally represented throughout and I have noted that the legal representative claims that that there was a technical difficulty lodging the complaint with the WRC. To allow for the case to be considered under the Protected Disclosures Act 2014 rather than the section 103(55M) of the Health Act 2007, I would have at the very least require seeing from the narrative on the complaint form that the Complainant indeed attempted to make a case under the Protected Disclosures Act. That simply is not the situation. It is not until the Complainant’s submissions are received in January 2018 that the case under the Protected Disclosures Act is made out. At that stage it is clear that the time limit to bring a complaint under the Act is well out of time. I note there is no request for an extension of time limits prior to the day of hearing. I am satisfied that sufficient reason has not been made out to support the Complainant’s case.

I note that if I find that I do not have jurisdiction to consider a case brought under Section 103(55M) of the Health Act 2007 if the case was filed outside of the 6-month time limit set out under Section 41 of the Workplace Relations Act 2015. However, I note Section 41(8) of the 2015 Act provides, in effect, that the time for presenting a claim under the Act may be extended for reasonable cause shown for a period up to but not exceeding 12 months from the date of the occurrence of the event giving rise to the claim.

Therefore, in relation to the time limits, I have considered all the evidence and I note the letter from Ms. A to the Complainant dated 4 April 2017, where is delivers the news that she is dismissed, and it states that the dismissal with take effect immediately. It is well established and settled law that the clock starts ticking from the date of dismissal and does not stop for appeals or until there is a decision following an appeal. In support of this I refer to the decision in Tom O’Neill v Bank of Ireland [1993] ELR 145 and Savage v J Sainsbury Limited [1980] IRLR 90 where a contractual term governed the interim period between initial notification of the dismissal to the employee and notification of the decision to appeal. In the O’Neill case the Respondent’s disciplinary procedure provided for an expressed specific internal appeal “pending which no disciplinary action will be taken” and a further external appeal. The EAT found that the dismissal became effective prior to the external appeal. In the Savage case, the employee’s contract of employment provided “Pending the decision of an appeal to a Director against dismissal, the employee will be suspended without pay, but if reinstated will receive full back pay for the period of suspension”. The English Court of Appeal construed the term to mean that the date of dismissal is the date the initial decision to dismiss is notified to the claimant and not the date he is notified the appeal failed.

The decision in Savage was approved by the House of Lords in West Midlands Co-Op Society Limited v Tipton [1986] IRLR 12, where Lord Bridge of Harwich agreed that in “the absence of an express contractual provision to the contrary” that “the effective date of dismissal is the date of the initial notification of dismissal to the employee”.

Therefore, I find that the date of dismissal is not the date the Complainant was notified that the appeal was unsuccessful but the date of the initial notification of dismissal.

Section 41(6) to (8) of the Workplace Relations Act provide as follows: “(6) Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.

I appreciate that the delay was short, however, as an Adjudicator, I am bound to work within the statutory time limits pertaining to the Workplace Relations Act of 2015.

The applicable date is the date of dismissal, which I am satisfied is the 4 April 2017. The complaint before me was lodged 6 October 2018. There was no dispute over this date. Accordingly, I find that the Complainant’s claim was submitted outside the statutory time. 

Extension of time

The established test for deciding if an extension should be granted for reasonable cause shown is that formulated by this Court in Labour Court Determination DWT0338, Cementation Skanska (Formerly Kvaerner Cementation) v Carroll. Here the test was set out in the following terms: - “It is the Court's view that in considering if reasonable cause exists, it is for the claimant to show that there are reasons which both explain the delay and afford an excuse for the delay. The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd. In the context in which the expression reasonable cause appears in the statute it suggests an objective standard, but it must be applied to the facts and circumstances known to the claimant at the material time. The claimant’s failure to present the claim within the six-month time limit must have been due to the reasonable cause relied upon. Hence there must be a causal link between the circumstances cited and the delay and the claimant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would have initiated the claim in time.”

In that case, and in subsequent cases in which this question arose, the Court adopted an approach analogous to that taken by the Superior Courts in considering whether time should enlarge for what it considered was ‘good reason’ in judicial review proceedings pursuant to Order 84, Rule 21 of the Rules of the Superior Courts 1986. That approach was held to be correct by the High Court in Minister for Finance v CPSU & Ors [2007] 18 ELR 36.

The test formulated in Cementation Skanska draws heavily on the decision of the High Court in Donal O’Donnell and Catherine O’Donnell v Dun Laoghaire Corporation [1991] ILRM 30. Here Costello J. stated as follows: “The phrase ‘good reasons’ is one of wide import which it would be futile to attempt to define precisely. However, in considering whether or not there are good reasons for extending the time I think it is clear that the test must be an objective one and the court should not extend the time merely because an aggrieved plaintiff believed that he or she was justified in delaying the institution of proceedings. What the plaintiff has to show (and I think the onus under O. 84 r. 21 is on the plaintiff) is that there are reasons which both explain the delay and afford a justifiable excuse for the delay.”

It is clear that the test places a heavy onus on the applicant for an extension of time to identify the reason for the delay and to establish that the reason relied upon provides a justifiable excuse for the actual delay. Secondly, the onus is on the applicant to establish a causal connection between the reason proffered for the delay and the failure to present the complaint in time. Thirdly, the deciding Officer must be satisfied, as a matter of probability, that the Complainant would have presented the complaint in time were it not for the intervention of the factors relied upon as constituting reasonable cause. It is the actual delay that must be explained and justified. I note that the Complainant’s only case in relation to this is the legal matter as to the presented argument regarding the day of dismissal.

I cannot find that the Complainant’s failure to determine the date of dismissal is a sufficient reason to extend time. Especially when she was in receipt of professional legal advice on the matter during this time. Therefore, I cannot accept this as an excuse for not observing a statutory time limit.

For the above-mentioned reasons, I find that the Complainant has failed to establish a justifiable reason for her application for consideration under the Protected Disclosures Act 2014 rather than the section 103(55M) of the Health Act 2007, or a justifiable excuse for the delay in commencing proceedings with the WRC.

Therefore, I find that I do not have jurisdiction to consider the Complainant’s case.

Health Act 2007 - Protected Disclosures Act – no jurisdiction - time limits