ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference: ADJ-00016483

Parties:

Complaint(s):

Date of Adjudication Hearing: 03/05/2019

Workplace Relations Commission Adjudication Officer: Gerry Rooney

Procedure:

In accordance with Section 8 of the Unfair Dismissals Acts, 1977 - 2015, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Background:

The Complainant was employed as a Care Assistant in a Nursing Home from 10th July 2017 to 5th April 2018 and had less than 12 months service when her employment was terminated. The Complainant submitted that she was unfairly dismissed having made a protected disclosure regarding the alleged mistreatment of service users in the nursing home. She was therefore seeking protection under the Unfair Dismissals Act 1977-2015 for the alleged penalisation for making a protected disclosure.

The Respondent denied the Complainant was unfairly dismissed for reporting safeguarding issues but was dismissed due to her behaviour towards her colleagues. The Respondent submitted that the Complainant was seeking to use the Protected Disclosures Act 2014 to bring herself within the scope of the Unfair Dismissals Acts 1977-2015.

Summary of Complainant’s Case:

The Complainant commenced employment with the Respondent on 10th July 2017 as a Healthcare Assistant. The Complainant submitted that throughout her employment she was concerned about the conditions in which the residents were treated, and that she regularly raised health and safety issues with her senior colleagues and the Home Manager, however no action was taken.

The Complainant maintained that she refused to complete documentation relating to restraints of a resident when she was asked by a senior carer as the Complainant had not cared for the resident in question. The Complainant maintained that the senior carer shouted at her and told her to "copy and paste" the documents and then sign them.

The Complainant also submitted that she refused to input inaccurate/fake information as requested by a senior carer into the Respondent’s electronic reporting system. The Complainant maintained that she was told by the senior carer that she was doing herself “no favours”.

The Complainant further maintained that she was concerned that wheelchairs would be used to take out black waste bin bags and the wheelchair would subsequently be used by a resident. The Complainant contended that she reported this to her senior colleague and the Home Manager. Other reports of concern that the Complainant maintained she reported included the personal hygiene of the residents not been attended to; a resident who was not incontinent being made to wear a pad to avoid time being spent taking that resident to and from the toilet; failure for a hoist to be used for certain residents when it should have been used; and failure to keep accurate notes in the duty book about residents. The Complainant also submitted that due to the poor care of a resident in February 2018 she received an infection in her eye. She maintained all of her complaints would have been known by the Respondent, but the Respondent failed to act on them.

The Complainant submitted that from around the 29th October 2017 she began to experience bullying behaviour from staff, that she was referred to as a “knacker”, and this bullying continued throughout her employment, where she was also required to take her breaks alone. When she reported being bullied on 29th October 2017 she was moved to another area. The Complainant said she brought all of her concerns to the Home Manager, but nothing was done by management to stop the bullying. The Complainant contended that she was feeling isolated, was made to take breaks on her own, and had been verbally abused by other carers and senior carers but nothing was done by the Respondent to address her complaints.

The Complainant submitted that on 31st March 2018 there was a bullying incident that was reported to the Home Manager involving herself and her colleagues and where the Home Manager informed the Complainant to apologise. The Complainant submitted the bullying continued and on 3rd April 2018 the Complainant was informed by the Home Manager that the owner wanted to speak to her. The Complainant met with the owner that day where the owner did not want to listen to the problems she was having with her colleagues. The Complainant maintained that she told the owner about issues regarding the health and safety of the residents and the Complainant contended that the owner did not want to listen and told her she was starting to annoy him.

The Complainant was off work the 4th April 2018 and when she returned to work on 5thApril 2018 she was stopped at the clocking in machine by the Home Manager and was told that “it is not working out.” The Complainant said that she was asked to give her swipe card back and to leave. She was told by the Home Manager that although she was a “wonderful carer” it was “not working out”. The Complainant asked the Home Manager if her dismissal had anything to do with the issue on 31st March 2018 with her colleagues and she was told it had nothing to do with it.

The Complainant therefore submitted that she had been unfairly dismissed for having made protected disclosures regarding the health and safety of residents, and in particular the disclosures she made directly to the owner on the 3rd April 2018. On that basis the Complainant maintained her dismissal is contrary to the Protected Disclosure Act 2014.

The Complainant maintained that she had records of the specific reports that she made, and referred to incidents on 31st October 2017, on 26th and 27th November 2017, on 14th February 2018, on 31st March 2018 and on 3rd April 2018. She was asked to provide specific details of these complaints, and others that she had recorded and to provide the basis of why she believed these reports afforded her protection under the Protected Disclosures Act 2014. The Complainant did not submit further details but maintained the notes of these reports were held by the Respondent on the reporting system. At the hearing the Complainant submitted that she was prevented from making reports on the electronic system by the House Manager. The Complainant confirmed that she did not bring her concerns to the Director of Nursing or to any third party she could report concerns to, such as the HSE or An Gardai Siochana. She advised that she would have raised them with the Respondent’s GP.

Summary of Respondent’s Case:

The Respondent submitted that it was a reputable private nursing home and was one of the largest nursing homes in Ireland. It advised that it has a waiting list of residents seeking to use the service.   It is voluntarily certified nursing home with the Joint Commission of accreditation. The Respondent further maintained that when staff join, they are trained during induction on the reporting policy on how to report concerns or incidents. The Respondent further maintained that the Complainant had reported sick in February 2018 with an eye infection, and where the medical certificate indicated it was treatment for an ongoing condition and was not related to the alleged incident regarding the care of a service user that the Complainant submitted had occurred in February 2018.

The Respondent contended that most of the concerns for residents that have been raised in the Complainant’s submission were never articulated to them during the course of her employment. It was further submitted that concerns under their protected disclosure policy were never made. The Respondent strongly refuted that it would have ignored any concerns that would have been made at the time, and that they would not turn a blind eye to concerns about residents as was suggested by the Complainant.   The Respondent submitted that it did not receive any emails or any written reports regarding the issues alleged by the Complainant.  

The Respondent advised that Care Assistants including the Complainant are trained in using an electronic reporting system, and once an entry is made in that system it cannot be deleted. The system is available as a touch screen in the corridors where staff can report any concern they have. It submitted that there were no reports logged on the system of the nature alleged by the Complainant   for which she is maintaining has led to her dismissal. It argued that there is no evidence to support the allegation that the Complainant had raised concerns about residents and as a consequence of raising these concerns she was dismissed. The Respondent advised that it had searched the electronic reporting system and asked the company that provides the system to identify concerns that were raised by the Complainant, but this review did not identify one single entry supporting that Complainant had reported a concern of abuse or neglect. The Respondent advised that three reports had been logged by the Complainant on 15th October 2017 regarding an alarm bell in the smoking room and a report on the behaviour of a service user; and two entries referring to a fall of a resident on 13th and 15th November 2017.

In response to some of the specific alleged incidents referred to by the Complainant, the Respondent submitted evidence of how it addressed some of these situations, and refuted that the House Manager (Health Care Assistant Manager) would ever have prevented the Complainant in raising concerns regarding residents, or that she would have failed to respond to concerns that were raised.

Evidence provided at the hearing from the Healthcare Assistant Manager denied that any concerns regarding residents of the nature alleged by the Complainant were brought to her attention, and specifically that no reports were made to her on 31st October 2017 or 27th November 2017 as alleged.

The Healthcare Assistant Manager submitted in her evidence that she was required to attend the nursing home on 31st March 2018 to resolve a conflict regarding an operational matter between the Complainant and another Healthcare Assistant. This incident was minuted by the manager and noted that the Complainant had been shouting at her colleague because her work breaks had been changed, and that the Complainant also shouted at the manager when the matter was being discussed. Another witness, who is the legal entity responsible for the standard of service under the regulator HIQA. advised that on 3rd April 2018 the Complainant presented in an aggressive manner in his office and alleged she stated in an incoherent rant about her breaks, and he referred her to her line manager.

The Respondent submitted that whilst the Complainant was a good Care Assistant there had been ongoing issues with her work colleagues where interpersonal difficulties had arisen between the Complainant and other staff members. The Respondent maintained that the Complainant was difficult to integrate with staff and she did not get on with other people that she worked with. The Respondent submitted that in October 2017, after working for four months with the Respondent, the Complainant had to be moved to another work location because others were refusing to work with her. The Respondent maintained there was no record that the Complainant having raised a bullying complaint at this time as alleged by the Complainant, nor did she raise a complaint through the organisation’s Dignity at Work policy. Notwithstanding, as she was doing a good job with the residents the Respondent decided to move the Complainant in October 2017 to another work area rather than terminate her probation.

The Respondent maintained problems continued between the Complainant and her work colleagues, and on 31st March 2018 the Complainant was shouting at a colleague which required the Healthcare Assistant Manager attend to resolve the matter. At this point the Respondent concluded that despite its efforts, problems were recurring, and by this time numerous staff were refusing to work with the Complainant. Therefore, on the basis that other staff did not want to work with the Complainant, and because of the ongoing issues between the Complainant and staff members, the Respondent decided that after eight months of service it could no longer continue employing the Complainant. Accordingly, in accordance with her contract of employment, the Respondent informed the Complainant on 5th April 2018 that her employment was being terminated. The Respondent paid the Complainant three weeks’ pay in lieu of notice, which it submitted was in excess of her contractual and statutory entitlements.

The Respondent contended that as the Complainant had less than 12 months service she was not unfairly dismissed. It also maintained that as the Complainant had not made a valid disclosure of relevant information as described under the Protected Disclosures Act 2014, she was not subject to an act of penalisation due to her dismissal. It maintained her dismissal was solely as a consequence of her ongoing behaviour towards other staff and where it had no option but to terminate her employment on the basis she was not an organisational fit for the company.

Legal Submissions

The Respondent submitted that the test for determining whether or not a worker has been penalised for having made a protected disclosure was elucidated by the Labour Court in the case of Aiden & Henrietta McGrath Partnership V Anna Monaghan where the Court determined that firstly it must be established that a protected disclosure has been made; and secondly if it is established that a protected disclosure was made, then it must be examined as to whether a penalisation within the meaning of the 2014 Act occurred. In the Labour Court's decision reference was made to O’Neill v Toni and Guy Blackrock Ltd, where jurisprudence in that case determined that in order to make out a complaint of penalisation, the complainant must establish that the detriment that he or she is alleging was imposed “for” having committed one of the acts as protected by section 27 (3) of the Safety, Health and Welfare at Work Act 2005. The Respondent submitted that the same application must be applied to the Protective Disclosures Act 2014.

The Respondent further submitted that with reference to the Labour Court’s determination, the making of the protective disclosure must be an operative cause of the penalisation, meaning that “but for” the worker having made the protected disclosure, he or she would not have been subjected to the act or omission complained of. Accordingly, the Respondent argued that consideration of the motive or reasons which influence the decision maker to subject the worker to the act or omission complained of must be undertaken.

In the case within the Respondent maintained the act of terminating the Complainant’s employment was due solely to her behaviour and not because of making a protected disclosure, where the Complainant argued no such disclosure was ever made.

Findings and Conclusions:

The Complainant was dismissed from her employment after eight months service. She submitted that her dismissal was due to her raising protected disclosures and as a consequence her dismissal amounts to an act of penalisation as defined in the Protected Disclosures Act 2014. She therefore submitted that she had protection under the Unfair Dismissals Acts by virtue of section 6(2)(ba)for having made a protected disclosure.

Section 5 of the Protected Disclosures Act 2014 contains an exhaustive definition of ‘protected disclosure’: “5. (1) For the purposes of this Act “protected disclosure” means… a disclosure of relevant information (whether before or after the date of the passing of this Act) made by a worker in the manner specified in section 6, 7, 8, 9 or 10.

In accordance with S5(2) of the Act, information is “relevant information” if— (a) in the reasonable belief of the worker, it tends to show one or more relevant wrongdoings, and (b) it came to the attention of the worker in connection with the worker’s employment.

S5(3) of the Act states that inter alia The following matters are relevant wrongdoings for the purposes of this Act—(a) that an offence has been, is being or is likely to be committed;… (d) that the health or safety of any individual has been, is being or is likely to be endangered,…(h) that information tending to show any matter falling within any of the preceding paragraphs has been, is being or is likely to be concealed or destroyed.”

The Complainant argued that she made protected disclosures to her managers during the course of her employment relating to the health and safety of residents, and as a consequence she was dismissed on 5th April 2018 for making such a disclosure. The specific dates she referred to of making the protected disclosures are on 31st October 2017, on 26th and 27th November 2017, on 14th February 2018, on 31 March 2018 and on 3rd April 2018, but she also alluded to uncorroborated reporting of other incidents.

The Respondent relied on decisions in Aiden & Henrietta McGrath Partnership V Anna Monaghan which followed the decision in O’Neill v Toni & Guy, Blackrock (2010) E.L.R. 21; a case under the Health, Safety and Welfare at Work Act and where it was held the commission of the protected act must be an operative cause in the sense that’ but for’ the complainant having committed the protected act he or she would not have suffered the detriment. This involves a consideration of the motive or reasons which influenced the decision maker in imposing the impugned detriment’. Put another way, would the action complained of have happened anyway, even if the protected disclosure had not been made. The most obvious basis for a complainant to successfully make out a case is that there can be no other explanation for the action, or at least any other reason must survive the ‘but for’ test as outlined by the Court.

In considering the evidence provided I am satisfied that while the Complainant has reported three issues on the electronic reporting system, none of these concerns amount to relevant information as defined in the Act. The other issues contended by the Complainant refer to what may have been verbal complaints, but where the Complainant could not provide any corroborating evidence that these complaints were in fact made. Having heard the evidence from the Respondent I am satisfied that there are systems for recording concerns and as a regulated body it has deployed significant resources and procedures to ensure concerns are reported and dealt with. Based on this evidence it does not seem plausible to me that the Respondent would have ignored concerns that were allegedly raised by the Complainant, and equally that it is not plausible that the Complainant did not know how to properly report a concern regarding the care of a resident.

What is clear and corroborated in the evidence is that there were ongoing concerns regarding the Complainant’s behaviour towards her colleagues, where complaints had been made against her, where she had been relocated at the end of October 2017, and where there was a significant altercation between the Complainant and a colleague on 31st March 2018 which concluded in the Complainant behaving aggressively towards other staff on 3rd April 2018. This appears to have led to the decision to terminate her contract of employment, where the Complainant was told of this on 5th April 2018. Only after that event and her dismissal did the Complainant raise complaints of penalisation.

Having considered   all the evidence presented I am therefore satisfied that the decision to dismiss the Complainant was based on her own behaviour towards other staff, and but for that behaviour she would not have been dismissed. I find no credible basis to the Complainant’s contention that she had raised concerns about patient safety to the Respondent, and that the Respondent ignored such concerns, and but for these concerns being raised she would not have been dismissed.

I therefore do not uphold the complaint the Complainant had made a disclosure of relevant information. Accordingly, I do not find that the Complainant was unfairly dismissed in accordance with Section 6 of the Unfair Dismissal’s Act 1977, as amended

Decision:

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

Having considered all the evidence presented by the parties, and having heard their submissions and responses, I declare that the complaint is not well founded.

Dated:   7th November 2019

Workplace Relations Commission Adjudication Officer: Gerry Rooney

Key Words: