Complainant

Respondent

Anonymised Parties

A Staff Nurse

A Care Centre

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005

CA-00017483-002

16/02/2018

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00017483-003

16/02/2018

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00017483-004

16/02/2018

The complainant’s representative outlined that he had commenced work as a Staff Nurse in a Residential setting on a permanent contract on 27 February 2017. Prior to this he had worked at the Centre as an Agency Nurse since July 2016. The Complainant was paid €18.31 per hour with premia paid for unsocial hours. His position was termination with one months’ notice paid in lieu on December 6, 2017

CA-0001748-002 Complaint on Penalisation under Safety Health and Welfare at work.

The complainant submitted that he had been penalised for complying with or making a complaint relating to both residents and staff under the legislation. He submitted that the penalisation took the form of his dismissal.

The Complainant relied on the same set of facts as in CA -0001748-003 in support of his case and contended that he suffered egregious penalisation at the hands of the respondent in the form of a summary, massively unfair and procedurally flawed dismissal.

. CA-0001748-003 Complaint for Unfair Dismissal:

The Complainant had responsibility for the care of 5 Service Users. He had a number of absences during his employment through illness and injury and his Probation period was extended .On 6 September, 2017 the complainant was sitting in the Residential Unit garden when he observed a Health Care Assistant inappropriately and aggressively pushing a service user in the kitchen area .He confronted the behaviour by saying “ you cant do that ….what you just did to X” . the Complainant reported the matter to his line Manager and (person In Charge) Ms A who passed the matter to the Human Resource Department. A preliminary screening and full investigation followed. The complainant has submitted that this complaint forms the basis of his complaint for the purposes of the Protected Disclosure Act, 2014 and the Safety Health and Welfare at Work Act, 2005.

It was the complainant’s case that he did not receive the outcome to this investigation prior to his termination of employment.

The next day, the complainant was requested to attend a Probationary review meeting. This meeting was accompanied by a document titled Probation review form, where the record demonstrated marked outcomes.

The Complainant was marked as meeting expectations in 3 categories, and as needing further Development in 10 categories, 3 were unmarked. His current performance governing a 3- and 6-month combined probation was marked “Further Development needed “.

The Complainants representative expanded on what this meant:

It is an indication that an extra focus is required and may be an indication that the person requires support and /or training. A person consistently performing at or below this level may eventually need to go through a separate process, but the performance management process provides a mechanism to address performance issues proactively at an early age.

There was no further action plan currently. The Complainant was deemed as not having passed his probation by his Line Manager.

Another probation review form was also filled that day. This document was titled staff review form (first nine months of employment) and had 14 listed categories. This time, the complainant scored 4 needs attention, one satisfactory, 2 good, 4 very good and 4 unpopulated.

The Complainants Representative pointed to marked inconsistencies and flawed markings between both reports compiled on the same day. More importantly, the Complainant was not matched with any specific training plan because of being deemed in need of improvement. The probation was extended to 21 November 2017.

Following this process, the Complainant submitted that he had been told by Ms A “You are after upsetting people inside … keep your head down” On inquiry, he was informed that he had upset the management team when he had raised an issue of dehydration wrongly diagnosed as a cold sore in June earlier in the year. Ms A minimised the incident.

The Investigation led by Mr A was underway and the complainant was interviewed on 18 October 2017.

On 24 October 2017, the Respondent wrote to the complainant extending the probation period by the length of 7 weeks sick leave “which effectively means that your probation will end on January 15, 2018.

A further probation meeting followed on 11 November 2017. The Complainant left the meeting to raise an accusation of bullying against Ms A. There was no follow through on scoring the criteria, or training identification and the Respondent concluded that the probation had been failed. The Respondent did not take any further action under its own disciplinary stages.

On 27 November 2017 the complainant indicated to Human Resource Management that he wished to make a formal complaint of bullying. This was termed by the complainant’s representative as the second protected disclosure and second complaint for the purposes of the safety health and welfare act complaint.

Two days later, the probation was resumed and this time the Area Manager, Mr B, who moved through the headings on the probation form and confirmed that the complainant was not meeting expectations, had failed probation and the matter would now pass to Human Resources. He informed the complainant that as he had failed two probations, his job was gone.

The Complainant countered the Respondent issues with him on 4 December, when at a further meeting with Mr B and Human Resources, Ms B, he submitted that he had been excluded from the Residential Unit on his return to work post injury, he has not been afforded sight of any alleged staff complaints. He raised the matter of receiving inappropriate texts from Ms A.

On December 6 at a follow up meeting with Mr B and Ms B, the complainant was informed that his employment was not to continue as the post did not suit him. The countered this by submitting that he was being let go due to the allegation he had raised, and this was refuted. The dismissal was immediate.

The Complainant was denied fair procedures or natural justice including the right to affair oral hearing Mooney V AN Post 4IR 288, the right to be represented at a Disciplinary Hearing Burns V Governor of Castlerea Prison [2009] IESC 33, the right to proper appeals process and the right to cross examine witnesses.

Two days after his dismissal, the Respondent furnished a response to the complainant’s complaint of bullying and enclosed a copy of the Respondents Dignity at Work Policy.

The Complainant also receive a copy of the Investigative findings after his dismissal by way of an undated report. The complaint was not upheld.

The Complainants Solicitor wrote to the Respondent on 30 January 2018 and outlined that the complainants experience of dismissal at the Respondent Centre amounted to an unfair dismissal and penalisation. This did not illicit a response.

The Complainants representative made legal submissions on the application of Section 5 of the Protected Disclosure Act to the facts of the case. He stated that the complainant had made allegations covered by Section 5(2), 5(3) and that Section 5(7) on motivation applied. He outlined that disclosures relate to a failure to comply with a legal obligation regarding safety health and welfare of residents and staff and that that safety was being or was likely to be endangered .He submitted that the complainant held a reasonable belief that the disclosures tended to show a wrong doing in the course of hi employment .He argued that in accordance with Section 5(8) of the Act , that the protected disclosures must be considered to be live unless the Respondent proves otherwise .

The Complainant submitted that he was entitled to the protection of the Protected Disclosure Legislation in the context of the Unfair Dismissals Act.

Complainants evidence:

The Complainant qualified as a nurse in 2013, He had previously worked as a Care assistant in a separate facility. He had worked in the Residential Unit as an Agency Nurse prior to his direct employment. This was the five Service Users home, many of whom had traumatic experiences in their backgrounds.

The Complainant referred to the incident he witnessed at the Unit in September as an assault. He was convinced that the carer had no need to put his hands on the client and he interpreted it as an assault. He said that he had seen him “push him out the door” while staff were sitting at the kitchen table. He was unhappy and rang Ms A and the Head of Service was also involved. He was repulsed and couldn’t fulfil the client allocation, as it included the Carer. Ms A intervened and complete the task. He submitted that he had been party to raising large scale complaints of sexually abusive behaviour in a separate care setting and this had coloured him. (The complainant gave the details at hearing)

The Complainant understood that that the first probation meeting was cancelled on 6 September and resumed on the 7th. The complainant engaged in the conversation but couldn’t see how his caring approach could be misinterpreted as “upsetting people”. He volunteered that his training or need for supervision were not met at the centre. He admitted that he was “quite nervous “of Ms A and the professional relationship was poor. Ms A made a big deal about medication and the complainant felt she was disappointed to learn that he had administered a medication as prescribed.

The Complainant could not explain why the probation meeting was held before the agreed date of 21 November.

The Complainant cooperated with the Investigation into the complaint he made on 6 September and had been informed by the investigator that he would be permitted to review the Investigation draft report. He received the outcome of the report two-day after his dismissal. He was aware that the Care staff in question had returned to work. He had missed the Investigative statement to be amended which was posted to him by Mr C at his alternate address.

The Complainant was adamant that Mr B had told him that his job was gone on 4 December and he hadn’t expected to receive an alternative message on the 6th December. He was not offered an appeal of the dismissal

The Complainant submitted that the reason for his dismissal was governed by whistleblowing. He has returned to Agency work post his dismissal and had worked locum since 18 January 2018. He submitted details post hearing on a knee condition, currently receiving ongoing treatment. He believed that he had been treated unfairly. He had understood that the service had valued his opinion

During cross examination, the complainant accepted that probation was a factor in his contract of employment. He confirmed that he had delayed his start date due to family and reference issues. He submitted that Ms A knew he was dyslexic. He denied that he had been “double jobbing “. He confirmed that the Residential Unit had an all-male service user population and he preferred the uniform gender: service user for intimate care.

When asked about Induction, he confirmed that he had completed two days as an Agency Nurse. When asked to elaborate on the composition of the March 2017 test that changed his working relationship with Ms A, he confirmed that it stated “I thought you were going riding to Galway “He determined it an inappropriate text and did not respond. He confirmed that he had agreed terms of reference for the investigation.

He confirmed that he was a registered Intellectual Disability Nurse and had completed behavioural training. the Complainant disputed that he had placed any client at risk and answered that taking the service user out for an early morning walk was probably not his best decision.

The Complainant engaged in post a series of post incident analysis with the respondent representative and the various time gaps in reporting and recording these incidents. He reflected further that he had sleeping difficulties post the assault.

The Complainant could not recall whether he requested an appeal of the decision to dismiss. He gave evidence of loss.

AT the close of the hearing, the Complainants representative made legal submissions on the application of Protected Disclosure in the case. He argued     that the 12 months service must be considered waivered in the face of such disclosures. He summarised that the Respondent did not have a Policy on Protected Disclosure. The Temporal proximity as set out in Dougan and Clark V Lifeline Ambulance ltd (Circuit Court) must be viewed as applicable, given the key dates from disclosure to dismissal. The Complainant was known to the service as an Agency Nurse where no issues were raised about him.

The Final report of the September complaint had by passed the complainant but had included the care staff (respondent).

The Complainant had experienced an alteration in his working relationship and had been warned to keep his head down. The respondent Policy issues went to the heart of the case.

He had been denied the benefit of fair procedures in the disapplication of the Disciplinary procedure. He submitted that the hearing had consisted of a retrospective effect to dig up day to day issues.

His client had suffered an extensive loss and he had taken reasonable steps at mitigation. Given, the differential in earnings, he sought the consideration of prospective loss in terms of compensation,

The Respondent operates a large Care Centre with 420 employees. It is a Voluntary Body reliant on Government funding. The Organisational Chart depicted a Management Hierarchy

Service Lead

Area Co Ordinator’s

Person in Charge

Staff Nurse / Care Staff /Social Care worker

CA-0001748-002 Complaint on Penalisation under Safety Health and Welfare at work.

The respondent disputed the claim and denied that the complainant ever engaged in a protected act within the meaning of the Act. The Respondent sought that the claim be dismissed and  outlined that the complainant had failed to provide details of his alleged penalisation such to enable the service to respond to the claim

The respondent challenged the complainant’s submission that he could recover concurrently under Section 27 of this Act and the Unfair Dismissals Act. The Complainant was also restricted by statutory time limits of six months prior to the date of claim i.e. 15 September 2017.

In relying on Labour Court Determination Kelly t/a Western Insulation V Algirdas HSD 081, where the complainant was compelled to establish not only that he/she suffered a detriment of a type in sub section (1) but that detriment was imposed because of or in retaliation for the employee having acted in a manner referred to in Subsection (2)

In addressing the “ but for “ test in Toni and Guy Blackrock ltd V O Neill HSD 095,This suggests that where there is more than one causal factor in the chain of events leading to a detriment complained of , the commission of a protected act must be an operative cause in the sense that “ but for” the claimant having committed the protected act he would not have suffered the detriment . This involves a consideration of the motives or reasons which influenced the decision maker in imposing the impugned detriment.

The Respondent submitted that the complainant had not made a complaint in accordance with the Legislation to a safety representative or the Authority or to his employer.

The Respondent emphatically denied any penalisation stating that the Respondent simply sought to manage the complainant in line with its normal management processes. The operative cause for his dismissal was a failed probation and a variance in behavioural plans for residents.

CA-0001748-003 Complaint for Unfair Dismissal

Preliminary Issues:

The respondent submitted two Preliminary Issues and requested they be determined prior to the hearing of the substantive case. In referring to the Supreme Court Decision of Charleston J, in Base Adigun and Equality Tribunal 2011 /10 JR

The Court held that the resources of courts and tribunals are limited. The Court held that it a pointless exercise to engage in a trial of fact over several days when whether the resolution of such facts may yield any redress to the claimant is clearly the first hurdle he must cross.

1. The Complainant did not possess one year’s service at the time of his claim for Unfair Dismissal.

2 The Complainant is excluded from the ambit of the Unfair Dismissals Acts, (Section 3.1) as he was serving a probation period of less than 12 months duration.

The Respondent outlined that the complainant had signed a contract providing a 9-month probation period and commenced work on February 27, 2017. His employment was terminated for failure to complete his probationary period successfully.

The Respondent denied that the complainant was dismissed for having made a protected disclosure and the respondent was unaware of any such action by the complainant.

The Respondent emphasised that they had not been given enough detail on the allegations set out by the complainant and this had the potential to disadvantage the respondent at hearing.

The Respondent also disputed that they had been placed on notice of any complaint/protected act undertaken by the complainant in relation to the Safety Health and Welfare at Work Act 2005.

As a preliminary point, the Respondent sought that both complaints be dismissed before the hearing is progressed on the substantive issues

Substantive case:

The Respondent denied all claims and outlined that the Care Centre operated as a Highly Regulated workplace. The Complainant was hired as a staff nurse and shift manager and assigned to a residential unit with a mobility clause. He reported to Ms A in her capacity as House Person in Charge (PIC).

The Complainant recorded three instances of sick leave between 31 March 2017 and 28 April 2017. The complainant delayed in furnishing both medical certificates in the April absence and incident reports in the other cases. An incident of aggression involving a service user was reported on March 31. It resolved through Doctor attendance and medication. This incident was not documented at the time or following his return to work.

The Complainants absence of 28 April alarmed the respondent, as the complainant sent several mixed messages regarding his absence, without speaking with the nominated in charge grade. He then complicated things further by resigning his position before withdrawing this notice. This culminated in an informal meeting with Human Resources in early May to clarify what was expected of the complainant. The HR Manager, Ms B told the complainant that “she was giving him a chance but that staff who don’t perform well during probation have been let go and if he didn’t improve this may happen to him.” This was a minute meeting, where the complainant had not returned the minutes by completion of his signature.

The Respondent referred to a phone incident on 18 may, where the phone went dead when the complainant was following up a medication query. The service could not contact the complainant until it transpired that Ms A and the complainant had spoken and resolved the matter. Ms A had arrived from home. This was followed by a Supervision with Ms A on 31 may, 2017 and assigned an improvement notice in House Routines, Daily Task Sheet completion. He was also delegated authority for a medication monthly audit but ha a difficulty in completion where the Respondent delegated the task to an Agency Nurse without incident.

The period of June to September 2017 was challenging in the respondent’s management of the complainant. He did not attend his s3 month probation scheduled for June due to illness following an alleged assault. The Company Doctor referred the complainant to a hospital, but the complainant chose an alternative. He was deemed fit to return to work on July 12 and the Management decided that he was best placed in a less challenging unit to reduce the risk of further assaults. The Complainant was not keen to move Units. He completed an Induction shift of 6 hours in the lower intensity unit, followed by a nine-hour night induction, following which he excused himself from the roster submitting several excuses followed by annual leave. The Complainant stipulate that he wish only to return to work for his agreed roster before eventually agreeing to a revised roster. He missed out on starting back to work through oversleeping.

The Complainants attendance was erratic through August as he stated that he had reduced availability. He returned to the original Residential Unit on 29 August and was fully inducted by Ms A. Special interventions involving service users’ needs were emphasised. One service user was obsessed with dark liquids and his care plan indicated that that his fluids were diversified. The Complainant was coached on not bringing coffee to the house but dispute its application. The Complainants 3-month probation review was scheduled for 6 September. Supervision meetings were also planned.

The Probation meeting took place on September 6 but was postponed when the Complainant had raised his concern surrounding one of the service users requiring personal hygiene completion by a male rather than a mixed gender arrangement. Ms A needed to speak to the Director of Care on the matter. Ms A established that there was no restriction necessary to intimate care being provided by female care staff.

Later that afternoon, the complainant made a safeguarding allegation against another member of staff at the house. The Complainant stated that he saw a male carer grabbing and pushing a service user. The Respondent addressed this complaint through protocol and the incident was independently investigated.

The Probation review resumed on 7 September 2017, this combined the 3 and 6-month reviews. It was emphasised that he needed to integrate and work effectively with the team and familiarise work from support plans and use management structures effectively. The Complainant did not honour his commitment to Supervision September -November 2017.

On 4 October, the complainant sustained an injury from a service user. the Respondent contended that the complainant had not followed the care plan for this service user and had in fact contributed to his own injury. A further period of conflict followed where the complainant, having been passed fit by the company Dr refused to relocate to ales challenging area, preferring to work on his own Medical Advisors pronouncements. He returned to work on October 13. His probation was extended to January 15, 2018.

The Respondent flagged a further episode of concern which occurred on October 20 where several weeks post incident, the complainant was found to have taken a service user with the “coffee problem” out for a walk post two administrations of “when necessary medication interventions” on his own in the dark. This was in contravention of the service users care plan which required two staff on external trips. The Complainant had bought a coffee on the 2-hour trip and Ms A had come across the receipt through audit. The Complainant had not recorded the walk in the Night report. Ms A sought to address the service unease with the complainant’s actions, but the complainant didn’t engage and adopted a threatening stance over Ms A who stopped the probation review meeting confirming that the matter would be dealt with by Human Resources.

Further unease arose when the complainant insisted on covering a public holiday as Care staff as another social care worker was designated in charge for the day. He had an interprofessional communication issue with a care staff that unsettled the team.

When the Respondent sought to address the Complainants problem behaviour at 29 November resumed probation meeting, the complainant was either silent or diversionary. He was informed that he had failed his probation.

This was followed the next day with an unusual incident, where the complainant arrived at work without shoes or socks and explained that he had no hot water at home and wanted to shower at work.

On 4 December 2017, the Complainant was informed that he had failed his probation and offered an opportunity to comment. He raised several points of dissatisfaction from not being wanted back at his Unit post sick leave, not being told the identity of those who were complaining him, remonstrated for bringing coffee to the house. He felt that his probation was going fine until he received inappropriate text from Ms A. He had already been told he had failed his probation and surely the respondent should “just tell him so now “

The Respondent adjourned to consider and reconvened on D December 6. The issues raised were addressed:

1. There had been a communication mix up on his back to work location. This was rectified by the end of the week.

2 Complaints from staff members were affirmed

3 PRN Medication audit was re-assigned as the duties went being addressed.

The Complainant linked his dismissal to an allegation he had made. This was rejected by the Respondent and the reason for dismissal was given as “failure to pass probation “The complaint had no bearing on the decision to dismiss.

Evidence of Mr C Investigator:

Mr C detailed an impressive history of leadership in the Intellectual Disability Service. He had completed training in conducting investigations. He had prepared agreed terms of reference for the investigation under Trust in Care and not Protected Disclosure. He was thorough in his investigation of 4 witnesses. He constructed a floor plan and took a photograph of the kitchen area. He found that the nearest witness had not seen anything.

Mr C sent the draft Investigation Report to the complainant on 7 November with a cover note to respond by 15 November deadline. He sent the package by registered mail and sent a further reminder email on 12 November 2017. The Complainant did not contact him, and he released the completed report to the Respondent.

The Complainant contacted him on 5 December by email and apologised for not collecting the transcript. Mr C approved the release of the report to the complainant.

During cross examination, Mr C detailed his methodology applied to the investigation. The transcript returned unopened during the week of 15 November. there had been several attempts to deliver it. He had even called the complainants mobile phone. Mr C completed the Investigation on 27 November and posted it by registered post. The Complaint had not been upheld. Mr C made some key findings and recommendations. He expressed a reservation regarding staff not being aware of resident’s whereabouts in the house.

He stated that he would have had to alter the terms of reference if a Protected Disclosure had been mentioned. He was certain that it had not been mentioned.

Evidence of Ms A, Person in Charge:

Ms A had worked as a Social care worker for three yeas in the Residential Unit at the centre of this case. She became Person IN Charge (PIC) on a part time basis in 2016.She gave an elaborate detail on the clients and the various protocols which applies to their supervision and care.

Ms A recalled that the complainant had been participant in several noted clinical and operational incidents which had caused confusion amongst the remaining staff. She confirmed that the complainant was a senior staff at the Residential Unit. She received reports that he had not undertaken the medication audit before he went on sick leave. She then had to delegate to another nurse.

The Complainant offered to collect a cooking pot for an integrated hob in July 2017 and there was a certain levity around this. Ms A recalled that the complainant had often seemed low in mood and submitted that the text referred to by the complainant was directed at the Galway Races.

The Complainant proved unavailable for supervision meetings through dates not agreed and sick leave. The Complainant returned to the unit on 29 August and he was fully briefed on any changes in procedures. Ms A received several concerns from staff that the complainant persisted in cooking at night which delayed a Service Users bed time.

By The probation review meeting on September 6, Ms A began to have concerns and she pointed out a few corrective issues to the complainant. He, in turn assisted with medical terms on a service user care plan. Ms A was aware of the complaints stated preference that a male service user should be permitted intimate care by male staff only.

On 6 September, Ms A attended a PIC meeting 2-2.30pm. She received a text after 3pm to alert her of an incident. The Complainant reported an issue of alleged assault on a service user and confirmed that he had approached another member of staff as to what he had seen. She directed that a body chart be undertaken.

Ms A disputed informing the complainant that he passed his probation in September. She recalled that the complainant had stated that Social Care workers were better at paper work than he was. He wanted to pass his probation in the time allowed. Ms A did tell the complainant to keep his head down during a phone incident in May but not in September. The Complainant did not want to sign the probation review.

Ms A reflected on the early morning walk incident on 19 Oct. She recalled that she had corrected the complainant on his stark omissions but could not recall how he responded.

The Complainants review was due on November 13. The Complainant has remained on nights. Ms A stated that she had felt intimidated by the complainant as he tended to stand over her staring. She was unable to complete the probation because of the complainants “aggressive vibes”. She was not willing to meet him alone. Ms A then paired up with Mr B to complete the probation. They sought to go through the criteria but the complainant neither responded or commented. After this the complainant presented to work without shoes and socks coming up to starting time.

Ms A confirmed that the complainant had not demonstrated an improvement during his probation. Yet, there were also times when the relationship was good.

During cross examination, Ms A confirmed that Disciplinary matters normally go to Human Resources. The Disciplinary procedure had not been activated in the complainant’s case. In addressing the Complainants counsel on the apparent disparity and omissions in the second probation document, she replied “I want to help this man “He had done all hi straining and there was no cause for a Training plan.

Ms A had not been informed of a bullying complaint against her. She confirmed that the “dead phone issue” had not been flagged on the probation review. She confirmed that the events of September 6 had been investigated but the events of 19 October were not investigated. That had been overlooked.

Evidence of Service Leader, Ms D.

Ms D confirmed the existence of Trust in Care Policies and Safeguarding Policies. This was activated from line Manager to Human Resource Manager. The annual number of investigations would be less than 10. She was aware that the Investigation had been completed.

Ms D submitted that the 6 September incident was managed appropriately. She had asked Ms A to ensure safety and protection of Service Users and Staff.

Evidence of Ms B, Human Resource manager

Ms B had worked at the centre for 16 years. She outlined the complainant’s recruitment procedure which in turn led to a delayed start date through the complainants self-imposed delay.

She was aware that the complainant soon had several absences and a resignation which was subsequently withdrawn. Confusion followed.

Ms D confirmed that she had cause to address the complainant to remind him of his probation status in early May. The Probation does not provide for a representative presence. The Complainant subsequently visited the company doctor post an assault by a cup, He sought a brain scan due to his dizziness and inability to drive.

Mr D recalled that she gave the complainant two Support contact names following his approach to her in mid-November on Dignity at work issues.

Ms D was aware of the Trust in Care investigation. The Respondent provided taring by the Principal Social Worker. The Respondent practice was to engage external investigators. She selected Mr C and was impressed with his relevant background. Protected Disclosure information was contained in the Staff Manual.

Ms B received the report on 1 December. She phoned the PIC who confirmed that the care staff could resume work. On 4 December, a copy of the completed report was sent to the Care Staff. She did not communicate with the complainant.

The 4 December meeting with the complainant was pre-arranged as the complainant had not passed both of his probation reviews. Ms D held delegated authority to terminate staff appointments and she took the decision following Mr Cs input, to terminate the complainant’s contract. This was not connected to any safeguarding issues or earlier allegations, but wholly due to his performance. It wasn’t east to let him go but he did not suit the Organisation and the Organisation was not able to carry him .Ms D reflected that Ms A “ had tried everything “ to help the complainant succeed .Ms D confirmed that an employee on probation was not automatically covered by the terms of the Disciplinary procedure and the Contract was silent on it .

Nothing had come of the bullying complaint.

Evidence of Mr D, Clinical Nurse Manager 3 /Area manager

Mr C outlined that he had an awareness of the issues that the complainant had presented with during his employment. He had an awareness of the nonappearance of the complainant at the lower intensity unit post his return from sick leave, but no direct involvement.

Ms A had sought him out to say that she didn’t want to be in a room on her own with the complainant. He co-chaired the resumed probation meeting of 30 minutes duration and the probation review form was used. The Complainant was not interested and the “6 am coffee “was still an issue for the service. The Complainant mocked the language used and was “very closed” at the meeting. Both Ms A and he were looking for a response from the complainant to ascertain if things could be fixed?

The Complainant just stated that he made a clinical decision as a staff nurse in summation. AT this point, the complainant was informed that he had not met the service expectations and the matter would now progress to HR. Mr C denied that he told the complainant his job was gone, this was not his role and he did not hold the authority to dismiss. He had, however lost faith in him.

Mr C mentioned that he did not have a knowledge of the Trust in Care process.

In closing, the Respondent representative disputed the complainants alleged loss, given that he hadn’t sought full time work.

In addressing the presence or not of a Protected Disclosure, the Respondent relied on Liam Carr and Donegal Co Council at the Labour Court PPD 161,

The Representative submitted that the complainant had raised a safeguarding allegation in line with the Organisations normal policies and treated as so. The complaint was not raised through the Protected Disclosure channels nor did he seek to anonymise his complaint as expected on making a protected disclosure. She disputed that the complaint was a Protected Disclosure.

1 The complainants subjective view could not be viewed as being “reasonably held” Three Individual present with the complainant did not support the complainant’s version of events.

2 The Complainant was a senior staff member and detection; prevention and reportage of safeguarding incidents is an integral core duty of all staff in residential care. Reportage was normal. The Act did not involve “any act or omission on behalf of the employer “but rather an alleged act of another employee, and Carr applied. Section 5(5) of the Act prevailed.

A matter is not a relevant wrongdoing if it is a matter which it is the function of the worker, the works employer to detect, investigate or prosecute and does not consist of or involve an act or omission on the part of the employer.

The Respondent contended that the Adjudicator must be satisfied that there was a protected disclosure, and the dismissal occurred “wholly or mainly “because of making the protected disclosure.

The Respondent submitted that this was simply not the case and the significant time lapse which had unfolded from Sept 6 to December 6 which was augmented by serious concerns about the complainant performance at work. She disputed that the complainant was unable to discharge the significant onus of proof required to demonstrate that the dismissal occurred in reaction to, or in retaliation for the complainant having made an alleged protected disclosure Southside Travellers Group V Imelda O keeffe UD 17/180

I have given extremely careful consideration to the complaints raised in this case and the responses received. I have listened very carefully to all witnesses and have reflected on their evidence. I sought additional information from the Respondent in the form of:

1 An Organisational Chart to confirm the reporting structures

2 Details of all policies in place. Trust in Care, Safeguarding and Protected Disclosure

3 Copies of Incident Reports and any other records associated with the Complaint.

I am grateful to the Respondent for their submission post hearing. These were exchanged with the complainant, but no further commentary followed.

CA-0001748-002 Complaint on Penalisation under Safety Health and Welfare at work.

I have considered both party’s submissions in this case. I have found that the Complainant was unfairly dismissed arising mainly from having made a protected disclosure in CA -0001748-003. I have awarded compensation for loss under the Act.

The Complainant submits that he made complaints relating to both residents and staff.

The Complainant made a complaint of suspected physical abuse of a Service User on an Incident form dated 6 September 2017. This was subject to Preliminary screening and subsequent investigation. The complainant was not involved in receiving an outcome to his complaint and was dismissed before he received it. He had omitted to respond to the Investigator on the draft report. While I appreciate that the complainant made several statements of concern in relation to Service User Intimate care and interpersonal contact between he and Ms A. I did not have sight of details of any complaints /representations outside the 6 September complaint which was recorded on an incident report form.

I have addressed this complaint in CA-0001748-003.

The Respondent denies receiving such a complaint. I appreciate that the Incident form dated 6 September 2017 is not titled complaint under safety health and welfare at work, but on a close examination, it complies with Section 27(3) in that regard.

I must conclude that I have established that the complaint of September 6 falls under the definition of a protected act in accordance with Section 27(3) the complainant suffered the detriment of dismissal and was  penalised by way of his dismissal on 6 December 2017. There were several other factors at play in the employment relationship where the Respondent had serious concerns over the complainant’s performance, however, I am satisfied that he is covered by Section 27(2)(3) of the Act and was unfairly dismissed mainly for having made that complaint.

I note the limitations of Section 27(5) of the Act.

(5) If penalisation of an employee, in contravention of subsection (3), constitutes a dismissal of the employee within the meaning of the Unfair Dismissals Acts 1977 to 2001, relief may not be granted to the employee in respect of that penalisation both under this Part and under those Acts.

I accept that I may not grant relief twice in relation to the Unfair Dismissal. I have found the complaint well founded.

CA-0001748-003 Complaint for Unfair Dismissal

Preliminary Issue:

The Respondent submitted that the Complainant did not possess the requisite service to ground a complaint under the Unfair Dismissals Act. He had commenced a Contract of Employment which provided for a 9-month period of probation, which in the complainant’s case was extended due to illness to January 15, 2018.

Section 6(2) (be) of the Unfair Dismissals Act provides:

Without prejudice to the generality of subsection (1), 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:

(ba) the employee having made a protected disclosure

The Complainant has built his entire case on such a disclosure being present in the case.

The respondent has denied that the Complainants 6 September 2017 complaint amounted   to a protected disclosure as provided for in the Protected Disclosure Legislation and contended that the complainants actions should be determined   in accordance with the exclusionary clause of Section 5(5) of the Protected Disclosure Legislation ,as being part of his everyday role and function of detecting , investigation and prosecution of wrong doing for which the protection of the Act does not apply .

As a first step, I must decide whether the Complainant has the locus standi to advance his complaint? To achieve this, I must establish whether the complainant made a Protected Disclosure during his employment which incorporates the period 27 February 2017 to 6 December 2017. If he succeeds in this, he is entitled to advance to the second hurdle in the case.

That is whether   the September 6 complaint was wholly or mainly the reason for     the dismissal or not. If he is unsuccessful on the first hurdle, my role in the case will cease as applied in Carr and Donegal County Council.

The Protected Disclosure Act, 2014 was enacted on 15 July 2014 this replaced the previously applied sectoral approach to Whistleblowing deemed to be “relatively weak”. Kieran’s refers to the Government objective for change was led by seeking to introduce “a single overarching framework for the protection of workers in the public, private and non-profit sectors.

Lauren Kieran’s, in her informative chapter on Whistleblowing in Employment Law outlines

The definition of penalisation under Section 3(1) Unfair Dismissals Act includes the act of dismissal. Section 11(1) of the 2014 Act amends the 1997 Act to provide that the dismissal of an employee is automatically unfair if it results wholly or mainly from an employee having made the protected disclosure. This protection springs into being from the first day of employment. Employees who are found to be unfairly dismissed for having made a protected disclosure are entitled to compensation of a maximum of five years remuneration. This may be reduced by up to 25 per cent if the investigation of the relevant wrong doing was not the main motivation for making the disclosure.

Dismissal during probation or training.

3.— (1) Except in so far as any provision of this Act otherwise provides, This Act shall not apply in relation to the dismissal of an employee during a period starting with the commencement of the employment when he is on probation or undergoing training—

(a) if his contract of employment is in writing, the duration of the probation or training is 1 year or less and is specified in the contract, or

(b) if his contract of employment was made before the commencement of this Act and was not in writing and the duration of the probation or training is 1 year or less.

The Complainant comes within the definition of a worker in accordance with Section 3 of the Protected Disclosure Act.

Protected Disclosures are defined in Section 5 of the Act, subject to sub section 6 ,17 and 18.

A Disclosure of relevant information made by a worker in the manner specified in SS ,6,7,8,9,2,10

S.5(2) Relevant information is 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 workers employment.

Relevant wrong doing is defined in Section 5(3) of the Act.

Section 5(8) Provides that a protected disclosure shall be presumed, until the contrary is proved.

In the instant case, I applied a careful consideration to all documents submitted by both parties. Firstly, I considered the Incident Form which was accepted by both parties as forming the basis of the complaint that triggered the Preliminary Screening and subsequently the Trust in Care Investigation. This was accompanied by a Referral Form to a Designated Officer. Both documents were only partially completed, and I was surprised by this. I would have expected much more precision given the pathway the complaint advanced on via full investigation and a report to the external standards regulator.

I accept that the respondent did not have a defined Protected Disclosure Policy in place at the time of the incident and I appreciate that the management team were somewhat vexed at the retrospective analysis applied to this complaint. I fully accept that the complainant did not title his complaint as a Protected Disclosure complaint, nor did he seek any of the protections readily associated in terms of anonymity. However, I must examine the facts of the case retrospectively to ascertain whether the complaint of alleged physical abuse can be termed a protected disclosure. The integrity of this case depends on this.

In Monaghan V Mc Grath Partnership, [2017]28 ELR 8, in a complaint of Penalisation under S 12, The labour Court applied a detailed analysis to a series of patient care complaints and determined that these complaints constituted Protected Disclosures. I found it helpful to insert a definitive paragraph

“The Court was faced with a direct conflict of evidence on whether the respondent knew the complainant had made telephone calls to HIQA in the period 28 March 2014 to 1 May 2014. However, having considered the evidence, the court is satisfied that it was accepted by both parties that at an appraisal meeting held on 29 April 2014, the complainant informed the respondent of information concerning wrongdoings regarding patient care which she reasonably believed was occurring within the nursing home and which had come to her attention in connection with her employment. These concerns related to alleged health and safety risks to residents. On that basis the court is satisfied that the complainant made a protected disclosure on 29 April 2014 within the meaning of S 5(3) (d) of the Act.”

The Respondent has maintained throughout this case that the complainant was submitted in accordance with their Safe guarding Policy which diversifies operationally into the HSEs Trust in Care in investigating. They argued that this was clearly distinguished from a Protected Disclosure. I have read both Policies and both are excellent statements of Policy. Neither, however, incorporate the provisions of the Protected Disclosure Legislation. I did draw the party’s attention to the very helpful S.I 464 of 2015 which serves an excellent Code of Practice in the emerging area.

I note that the Protected Disclosure Policy     submitted to me in October 2018 was unapproved and undated and stood in sharp contrast to the CEO endorsed Safeguarding Policy. I can appreciate that the Respondent, like many employers had not yet formalised a specific policy for Protected Disclosures.

I note that the Safeguarding Policy places the client at the centre of the service and undertakes to educate staff. It is important to reflect that the complainant was not inducted into the Respondent Policies at the commencement of his direct employment. When asked, he confirmed that he had done some induction as an agency nurse but not as a direct employee. This was a stark omission in a Care setting.

I am satisfied that the complainant made a disclosure of relevant information and that he held a reasonable belief that relevant wrongdoings had occurred in accordance with Section 5 (3)(a)(b)(d)(e).

I have given some thought to the Respondents submissions that Section 5(5) disqualified the claim.

Section 5(5) of the Act provides that workers whose function it is, or employers whose function it is, to detect, investigate or prosecute wrongdoing and make a disclosure in relation to that wrongdoing will not be protected under the 2014 Act unless the wrongdoing consists of an act or omission on the part of their employer.

The Respondent relied on Carr and Donegal County Council at the Labour Court and I have considered the application of the case. Four of the 6 disclosures consisted of complaints in relation to behaviour of his subordinate fire fighters , the fifth referred to a work payment , the sixth reservations on the enduring physical capacity of co-workers to continue in work .The detriment was referred as an undermining of position .The Court remarked that the complaints could not reasonably be argued to be outside the function of a Station Officer and held against the complainant .

In the instant case, I note that the complainant was at 4 years qualified, still a relatively junior nurse. He was the in-charge grade for his shift not the designated Person in Charge. I noted the complainant’s evidence that in a previous career, he had been participant in a large-scale complaint in a Care Centre, I could see that he was clearly still traumatised by these efforts.

I noted that he stated that he was very shocked by what he saw in the house on 6 September and he took some immediate steps to distance the alleged perpetrator from the service user. I was particularly struck by his reported lingering repulsion at what he had seen, which served to excuse him from having to assign tasks to the alleged perpetrator on a subsequent shift, prior to the care staff’s suspension. Ms A took over that assignment and accepted his reservations.

For me at least, I found that the complainant acted responsibly in his role in his reportage of the issue. It is of cardinal importance that the complainant was later chided for his overzealous direct approach of a witness present in the kitchen that evening. This confirms the restrictions placed on the complainants delegated capacity in the application of Section 5(5) of the Act. In addition, Policy dictates that all complaints are Preliminary screened prior to external Investigation. I am satisfied that the complainant held a reasonable belief that harm had been affected on a Service User and that this amounted to an omission to care. I believe that it is important for me to reflect on the context of the complaint being that of client care, the core function of the service. In Carr, the case reflected more of an interpersonal conflict, worthier of grievance action.

While I appreciate that the report made by the complainant on September 6 was not titled Protected Disclosure, nor populated on a specific protected disclosure complaint form, nonetheless, for me, at least, I have found that the Complainant has demonstrated that he made a Protected Disclosure on 6 September,2017 and the Respondent had not been able to rebut this. The Preliminary issue has resolved in favour of the Complainant. I find that he is entitled to rely on the provisions of Section 6 (2) (ba) and advance his complaint under the Unfair Dismissals Act.

While the Complainant advanced other potential matters that were also potentially protected disclosures, I cannot establish that they are remotely proximate to the strict definition required.

Substantive case:

The next question to be addressed is whether there were substantial grounds justifying the dismissal or whether the complainant was dismissed wholly or mainly for having made a Protected Disclosure?

I have reflected on both party’s written submission and evidence adduced in the case. There is no doubt that the Complainants 9 months and 9 days of employment were challenging both parties. There were early communication issues and extensive sick leave. I found it relevant that the Complainant was most often the sole nurse on duty and the service had genuine concerns that he was departing from protocol in Service User care delivery. However, while he seemed to get on very well with Ms A as his Supervisor at the beginning, I could not establish whether he had Nursing Supervision in any structured format prior to the involvement of Mr D some one week prior to his dismissal. The Respondents case has centred on how the Complainant did not perform well in his job and this did not resolve. In fact, the shortfalls intensified, and the Respondent through Ms A and Mr D at least presented as overwhelmed by the challenges. I noted that the leadership of the Residential Unit had evolved during 2016 and perhaps an equilibrium had yet to be established in the new order.

I note that the Complainant told the hearing that the “over familiar “text caused a distance between him and Ms A. I had difficulty with this analysis, given the March 2017 timing of this text. I have established that the complainant was inadequately prepared for a working life as a Nurse at the Respondent care centre. Time and Time again, differences of opinion were exchanged on what was in the best interests of the Service Users and debate is always healthy. Despite the extensive sick leave and shift confusions, there was ample opportunity to commence the Probation Review far in advance of September 6/7, 2017. Both parties lost out through this delay. I must also say that I found the complainants level of enthusiasm seemed to nose dive during the 3 months prior to his dismissal. I am mindful of Ms as comment that he was “sometimes down”. This was not reflected in any formal engagement.

I fully accept that the Respondent had a view that they couldn’t take any more of the complainant’s erratic behaviour at work by the time of his dismissal. The Line manager was afraid to be on her own with him and Mr D said that there was no more that could be done. MS D said he didn’t suit the Organisation and they could no longer carry him.

For my part, that is an overs implication of the facts of the case as they are presented in a vacuum of the parallel investigation under Trust in Care. On reflecting on the complainant’s submission on the different experiences as an Agency and Directly employed Nurse in the same setting, I returned to a careful analysis of the paper work governing the complainant’s employment, as I was certain that the Respondent would not have hired the complainant in February 2017, if they had the slightest reservation about his performance as a Nurse.

Firstly, I was drawn to the minute meeting of May 3 between the Human resource manager and the complainant where he was reminded that he was two months into his probation and an improvement was needed. I was troubled by this exchange as the complainant had clearly by passed his line manager to HR, who in turn seemed to take on an operational management role. This did not prompt a three-month probation review. Instead a Supervision meeting took place with Ms a on 31 may, which seemed very standard and reflective of where the parties stood in the early days of employment. What followed was a series of contacts through the complainant’s sick leave following the “cup “issue.   These contacts contained a certain amount of frustration between the parties on rostering and contact ability.

I have paid attention to the back To Work meeting of 29 August 2017 between Ms A and the complainant. At this meeting, the probation Review Meeting was scheduled for 6.30 on 6 September and Supervision for the 7th September and the meeting concluded on joint signatures.

The probation review conflations followed on 6/7 September. The core point of interest for me on these forms was not so much that inconsistencies and omissions occurred in the criteria marked but rather on the Outcome of the Reviews;

On the first of two documents Section G provided for Current Performance for three and 6 months and Further Development was ticked but not elaborated on. On the second document, Section G had three outcomes listed and the outcome of extension to 21 November was recorded. On 24 October the complainant received a notification that his probation was extended to January 15, 2018. The Complainant did not raise this inconsistency.

The Probation resumed on 11 November and Section G concluded in poor performance overall when the complainant walked out after 15 mins. I did not have the benefit of the parallel report which Ms A made to Huan Resources at this time. interesting the Section dedicated to HR was completed by Ms A, presumably in error. I accept that the complainant also intimated that he wished to make a complaint of bullying against Ms A at this time. Once the Probation resumed on 29 November, the Probation review proforma form had been abandoned. Once again, I couldn’t establish that the complainant had been marked failed in his probation, as failure should be attributed to a shortfall in marks.

The December 4 meeting was introduced as a discussion on the complainant not passing his three- and six-month probations and to hear what he had to say.

It is not my role to decide whether the complainant was right or wrong in what he did. My role is to establish whether there were substantial grounds for his dismissal and whether he was managed within a band of reasonable with reference to his dismissal.

By any standards, this was a poorly managed Probation by both parties. It was clearly a two-way process. I accept the Complainants points that shortcomings were not matched with improvement plans, training or targets for improvements. However, His lack of engagement in the process clearly polarised the process. I believe that the Complainant ought to have considered representation during this process. I note that this facility was not offered. It seemed to me that there was insufficient opportunity for intra professional communication in the complainant’s aspect of the service and this seems to go to the root of the discord.

I have reflected on all oral and written accounts of December 6 meeting which announced the decision to dismiss the complainant immediately on the subjective ground of the post not suiting him.

I then reflected on the time lines associated with the management of the complaint dated September 6. I was very impressed by the Investigators presentation at hearing and the thoroughness of his Report. His findings and recommendations were astute.

In reading the Trust in Care report, I was drawn to the Policy’s’ stated     commitment to involve a complainant in the outcome of any complaint. This did not occur. While I found that the complainant was unwise not to follow up on the draft Report, I found the Respondent clearly deviated from best practice by not informing him of the outcome of the report prior to his dismissal. I say this as I have established that the alleged perpetrator was treated differently by being given a copy of the report and invited back to work a couple of days prior to the complainant’s dismissal.

I was struck by the fact that neither Ms A or Mr D had a working knowledge of the status of the Investigation report during the meetings prior to the dismissal. I accept their evidence. However, Ms D was both aware of the status of the report and the probationary meetings and did not engage with the complainant on December 6 when he attributed his dismissal to his complaints. I found this extremely concerning, given it was common case that the report had been with the centre since December 1 and action had been taken to resume the alleged perpetrator from suspension. I found this exclusionary action undermined any and all of the copious amount of clinical concerns attributed to the complainant.

In short, the Respondent has not demonstrated that Probation had failed in any meaningful way. I am strengthened in my view of this by my questioning of Ms A. I asked her if she had requested that the complainant’s job should be terminated? She answered me truthfully, I believe,” no”. She knew the complainant best.

I understand that the complainant’s complaint was not upheld, but there was learning contained in the report for everyone. I found it very unusual that the service had not embraced this by means of team feedback at least. I found a sense of detachment exhibited by the Respondent in relation to this Investigation. I also found this somewhat in the complainant. I note that he had raised Data Protection Issues during his employment as he reflected an over run on that date during his dismissal. I drew some inferences from this inconsistency

The Respondent Representative has asked me to consider the extensive time delay between September and December which they say undermined the temporal proximity argument advanced by The Complainant in Dougan. The Respondent relied on O Keffee, where complaints were raised 18 months prior to dismissal and negated the claim. This is an important point for me to consider. I have stated previously that the Respondent did not appear to provide any visible liaison with the complainant post submission of his complaint. The Probation was running in twin track with the investigation and this disintegrated following the 29 November meeting. By then, Ms A had inadvertently, through audit discovered the receipt which led her to discovery of the unrecorded early morning walk. This serious issue seems to have been first addressed at the probation meeting on 29 November. I found this unusual and disconnected.

The Complainant had been informed that his probation was due to run to January 15, 2018. This was curtailed by the events of mid to late November. It became clear to me that the Respondent understood that termination of employment during probation was not necessarily contingent on a procedural framework. This is not the case. The Labour Court has stated in Beechside Co Ltd V A Worker , LCR 21798 what the Court reasonably expects to see in a Dismissal during Probation

Where an employee is considered unsuitable for permanent employment, the Court accepts that an employer has the right, during a probationary period, to decide not to retain that employee in employment. However, the Court takes the view that this can only be carried out where the employer adheres strictly to fair procedures. In the particular circumstances of this case, there is no reason to doubt the Claimant’s assertion that his reputation was seriously damaged by the actions of the Respondent. The Court has consistently held the view that it is imperative that an employer in a dismissal case must not only show that there were substantial grounds justifying the dismissal but also that fair and proper procedures were followed before the dismissal takes place. This requirement of procedural fairness is rooted in the common law concept of natural justice. The Court is satisfied that the Claimant was not provided with details of any performance issues; no warning was given that his employment was in jeopardy; he was not afforded the right to representation; he was not provided with reasons for his dismissal and he was not afforded an opportunity to reply. Therefore, the Court is satisfied that he was denied natural justice.

I found some difficulties with the Respondent submission on this point. The September 6 complaint was submitted and processed on a procedural correct basis. I was disappointed that the complainant was not supported during this period. I could see that the event had upset him greatly. The Probation /Supervisory structure should have if vehicle of support. This did not work for either party

. However, the probation process was short circuited from an outer range of January 15, 2018 to an earlier 11 November, 29 November end date and I found this unusual. Given that the Respondent summarily dismissed the complainant on one months’ notice on December 6 without addressing the overlap of the result of the Investigation (The alleged perpetrator had been invited back to work prior the dismissal) I found that the Respondent seemed to air brush the complainant from that process. In addition, on November 11, the complainant had clearly intimated his desire to make a complaint of bullying against Ms A. Ms D concluded that this had not gone anywhere, but then moved to forward the Dignity at Work Policy 2 days post his dismissal.

Notwithstanding the parallel clinical concerns, the Respondent shared on the complainant’s performance, his exclusion from the outcome of the Trust in Care investigation raises major doubt on the reason given for dismissal. The Respondent moved from an incomplete probation to a dismissal within one week thus undermining their own probation deadline of 15 January.

This corresponded with the reception of the Investigative Report and the invitation extended to return the alleged perpetrator to work in the Unit where the complainant had been rostered continuously since September 2017. The two events are, in my opinion inextricably linked. While I accept that the complainant’s performance challenged the Respondent, I found that his exclusion from the Investigation Report outcome was a retaliatory action. He was not heard when he sought to argue that he understood that this was the reason for his dismissal.

By not hearing him, or offering an appeal on his dismissal, the Respondent brought an end to the employment relationship. I have found that the Complainants employment was terminated by the Respondent in reaction to and in retaliation for him having made a Protected Disclosure and while not wholly the reason for his dismissal, it was mainly the reason for it. O Keeffe distinguished.

I appreciate that there was a sub culture of serious clinical concerns at foot which should have been challenged, supported and managed by both parties transparently earlier in the working relationship but for me at least they are secondary to the protected disclosure. I found the way the dismissal from a permanent position was undertaken amounted to an arbitrary action in the extreme and void of fair procedures. I appreciate that the complainant knew his job was in jeopardy, however, this also was a mixed message detached from the SI 146/2000 on fair procedures during a Disciplinary situation.

The immediate cessation of employment coming so close to Christmas displayed a scant regard for the effects a dismissal might have on an employee. Summary Dismissal has been termed the” nuclear option” and without question is a devastating experience. The Complainant made his complaint in good faith and he had the right to be wrong.

I was also disappointed with the very poor procedural framework associated with the Probation.

find that the complainant is entitled to succeed in his claim for Unfair Dismissal.

Decision:

CA-0001748-002 Complaint on Penalisation under Safety Health and Welfare at work.

Section 41 of the Workplace Relations Act 2015 requires that I decide in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 27 of the Safety Health and Welfare at Work Act 2005 requires me to make a decision in the case.

I have found that the claim is well founded but am restricted in making an award in accordance with Section 27(5) of the Act.

Instead, I require the Respondent to immediately revise its complaints procedures to facilitate complaints under Safety Health and Welfare at Work Act alongside complaints under Protected Disclosure legislation and all Line Managers to be provided with training in complaint management within three months of the date of this decision, if not appealed.

CA -0001748-003 Unfair Dismissal

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claims consisting of a grant of redress in accordance with section 7 of the 1977 Act.

I have found that the complainant has succeeded in his claim for Unfair Dismissal and compensation is the only practical remedy available to me. I am mindful of the complainant’s evidence of mitigation, loss and his medical report dated October 2018.

I order the Respondent to pay the complainant € 35,000 in compensation for actual and prospective loss. I have considered the complainants contribution to his dismissal and the complainant’s unavailability for work 14 August 2018 to February 2019 and have factored both into my calculation.

I would also recommend that the Respondent revises its Probation Policy to allow for Professional Representation and a Uniform marking system.

Safety Health and Welfare at Work Act, Protected Disclosure, Unfair Dismissal