ADJ-00016817

Complainant

Respondent

Anonymised Parties

A social care worker

A social care provider

Representatives

  Self.

Aishling, McDevitt,Ibec.

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Schedule 2 of the Protected Disclosures Act, 2014

CA-00021824-001

12/09/2018

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

CA-00021824-002

12/09/2018

The Complainant is a Social Care worker and was employed by the Respondent from February 2018 until August 2018.

This complaint was received by the Workplace Relations Commission on 12^th September 2018.

On 28^th July 2018 the Complainant was supporting a female individual who was then on a 2 to 1 ratio.  Running up to the 28^th July 2018 there was staffing issues and it was becoming increasingly more difficult each day to keep staff committed to their roster in the house where the Complainant was employed, this was well documented and reported within the Respondent organisation to all levels of management, including to the CEO.  The main reason for this was due to mainly qualified staff being pulled of shift, it was alleged that this behaviour was out of control in July 2018 with no or little notice given that staff had to work in a new service or other services.  Allegedly this practice, was mentioned in the Complainant’s manager’s resignation letter to the CEO in July 2018.

On 28^th July 2018 after completely exhausting all avenues and been mindful of the Respondent’s protocol, which specifically placed staff on a notice of dismissal, if it wasn’t followed, not to mention the threats coming from the person in the Respondent’s care via phone calls and some texts, the Complainant made contract with two government agencies and informed them about staff shortages which was placing both the employees and the individual in care at an enormous risk.  This was seen and is a protected act, shortly after this, the Respondent’s motives in assisting the Complainant to end his employment and the haste in doing so reflected their utter disgust for what the Complainant had done.  In a text to his former manager, the Complainant mentioned this and one specific verbal interaction between one of his colleagues and a senior manager.

Actually, the email from Mr D of the funding agency dated 30^th July 2018 reflects what was reported to be a protected act.  The young person involved in the disclosure threatened to burn the house down which was attached to a home with a young family.  The Complainant had to take this threat seriously, because of his experiences with the person in care.  The email dated 29^th July 2018 to the two government agencies explains in detail the events surrounding why the Complainant made the protected disclosure.

The sudden change in attitude with regards to his continued employment with the Respondent came to the Complainant’s attention on 30^th July when he realised he was omitted from a very important meeting in relation to the person he was supporting and again on 31^st July 2018 when a support manager alleged via email that the Complainant had agreed to be part of a team in Dundalk.  This was totally the opposite of what was offered to the Complainant on 23^rd July 2018 while talking to the support manager on the phone and some weeks beforehand in the Respondent’s head office.  That day the Complainant contends that he was offered work in Dublin ad was told that his experience, qualification and the job he was doing in his current position was the type of employee the Respondent wanted to retain.  The Complainant was led to believe that this was reflected upon in his then managers resignation letter.

The Complainant’s employment with the Respondent started on 19^th February 2018.  He was employed as a fulltime team leader and it formally ended on 1^st August 2018.  The notice that his employment formally ended came via email from the HR Manager to an administrative assistant stating that the Complainant had resigned and a request to commence the preparation of his P45 and final entitlements. The email sent by the Complainant on 31^st July 2018 to senior management and HR was accepted by them as his letter of resignation.

The Complainant contends that the cessation of his employment was a common but blatant case of penalisation.  The Protected Disclosure Act 2014 is supposed to protect employees (whistle blowers) from penalisation (including threatened penalisation) for making a “protected disclosure”.  A “protected disclosure” is a disclosure of relevant information in accordance with the Act.  Such information must in the reasonable belief of the worker, tend to show a relevant wrongdoing and must have come to the attention of the worker during their work.

“The Act is intended to provide a robust statutory framework within which workers can raise concerns regarding potential wrongdoing that has come to their attention in the workplace in the knowledge that they can avail of significant employment and other protections if they are penalised by their employer or suffer any detriment for doing so”.

“The commencement of the Act meets the commitment contained in the Programme for Government to introduce whistleblower protection legislation.  It also addresses the recommendation contained in the Final Report of the Mahon Tribunal advocating the introduction of pan-sectoral whistleblower protection legislation”

(Minister Brendan Howlin and Minister Paschal Donohoe)

On the final day of the hearing of this complaint (25/06/2019) the Complainant submitted a second submission in which he addresses many of the points raised by the Respondent. I have taken the wording directly from the Complainant’s submission.

Due to some comments at the hearing on 29^th March and the 14^th May 2019 by the respondent’s representative I reluctantly and without prejudice will attempt to address the 14 appendices in the respondent’s representative’s submission, which is not dated, but that original hearing was scheduled for 29^th November 2018.

The respondent’s representative stated at the last hearing on 14^th May 2019 that the complainant (myself) couldn’t make a complaint under the Health Act 2004/07.  This highlights a contradictory or illogically paradox into what should be an independent hearing, where both sides are facilitated to put their cases forward for adjudication and within a reasonable timeframe.

Provision of services by voluntary bodies and other persons.

Section 10 of the Child Care Act 1991 – F2[“eligible adult”, subject to subsections (1A) and (1B) means a person aged 18, 19 or 20 years who was in the care of the Child and Family Agency for 9. – (1) a health board may, subject to any general directions by the Minister and on such terms or conditions as it sees fit, make arrangements with voluntary bodies or other persons for the provision by those bodies or other persons on behalf of the health board of child care and family support services which the board is empowered to provide under this Act.

“The Health Act 2007 broadly defines “penalisation” as including “any act or omission by an employer or a person acting on behalf of an employer that affects an employee to his or her detriment with respect to any term or condition of his or her employment and which is consequent upon a protected disclosure”.

It is well documented about the challenges and at times interference involved for a complainant to both make a complaint and to have that complaint heard in a reasonable time or upheld.  It is worth noting that the Protective Disclosures Act 2014 did not replace the Healthcare Act or part 14 of the Act, “there are two sets of Procedures related to Protected Disclosures.  These are the Health Act 2004 (as amended in 2007) and the Protected Disclosures Act 2014.  Two separate sets of Procedures also operate in relation to these sets of legislation.  While the Protected Disclosures Act 2014 introduced a number of amendments in relation to the Health Act 2004, the Health Act also remains in operation” neither of these Acts replace any legal reporting or disclosure requirements arising under other legislation.

Where these statutory reporting requirements or procedures exist, they must be fully complied with.  One example of this legislation would be Children First which The Children First Act 2015 says that adults who work with children or young people have a legal responsibility to pass on protection and welfare concerns to relevant government agencies. – Better Outcomes Brighter Futures.  Better Outcomes Brighter Futures is the first overarching national policy framework for children and young people (aged 0 – 24 years) developed and led by the Minister for Children and Youth Affairs on behalf of the Government.

It was pointed out by the respondent’s representative, that the funding government agency uses the 2014 Protected Disclosures Act 2014.  However, what has come to the attention of the complainant recently and what’s most interesting is that under the Healthcare Act 2007, there is provision for employees in funded agencies, workers, members of the public to make a protective disclosure to the funder organisation but no such provision in the Protective Disclosures Act 2014.

The respondent’s representatives also stated that they were not aware of any investigation been carried out by the funding agency and I am not aware of the Respondent carrying out an investigation.  However, in stating this, there is actually no concrete requirement for the Respondent to carry out an investigation under the Protective Disclosures Act 2014.  The funding agency would be required under other legislation to carry out an investigation; these obligations could come under statutory code of practice and procedures for public bodies. 

Like other healthcare workers the Complainant (myself) is in this work for other reasons than its monetary return, where a lot of issues, concerns and complaints are raised in good faith.  This is done by healthcare workers for many reasons, but mostly in an attempt to better the services and outcomes for the individuals we support.  What is vitally important for employees, especially employees entrusted to work with vulnerable individuals and society as a whole is that the employer is seen to want to receive disclosures and there will not be any tolerance for penalisation resulting from making a disclosure.

My disclosure was not one where I was merely making suggestions for the improvement in the delivery of services.  I was highlighting a failure in services.

My motivation both leading up to 28^th July 2018 and subsequently on the date of the incident was done for the service users and the health and safety of others.  My former employer, the Respondent, themselves stated in the hearing of 29^th March 2019 that it was their intention to retain my services, but the absent attempt to engage in my complaints in any way whatsoever it not plausible and is certainly not remotely in line with best practice or part 14 Section 103 (55m) of the Health Act 2007.

The respondent’s representative is flip flopping in their submission around the complainant’s role, responsibility and the level of support that the individual in the care of the Respondent required, although that care was financed via a government agency 24/7 2-1 staff ratio in a house that was considered intensive support, albeit funded through aftercare.  Communication from Mr D (funding government agency) to my manager on 15^th June 2018 mentioned the considerable costs of running and signing off for the young person’s Intensive Support which was costing 10s of thousands monthly.

The Respondent’s representative in their submission also appear to draw conclusions that because the individuals service may have bee reduced in the near future that this somehow diminished either the Respondent’s or the Complainants responsibility to this individual in care.

The individual was distressed and felt let down, not only on 29^th July but very regularly and this was the reason behind the Complainant making a protected disclosure to the funding government agency.

The Complaint being presented relates to the treatment received by the Complainant from the Respondent after the making of the disclosure.

The motivation of the worker for making the disclosure is irrelevant to whether or not it is a disclosure protected by the Act. All disclosures will be dealt with regardless of the worker’s motivation for making the disclosure, and the worker will be protected so long as the worker reasonably believes that the information disclosed tended to show a relevant wrongdoing.

Those not totally familiar with the complexities of social care duties within healthcare might attempt to tarnish complainants as unreasonable. However, without the proper procedures and policies in place, that is exactly wat they come across as through no fault of their own, because they may well regularly find themselves on the receiving end of unwanted negative penalisation for fulfilling what should be their duty of care.

It is noted that the Respondent’s representative has not added the Respondent’s Whistle Blowing policy in their submission, because like the contract of employment that they inserted and are now alleging was my employment contract with the Respondent. The Complainant clearly states that he has never seen this before nor is there any evidence that it was ever given to him.

“A number of landmark cases at the WRC and the Labour Court show that the Act is doing its job of protecting workers from reprisals. Of course, the review has also brought to light a number of implementation issues and the next step in the process will be to work to see how these can be addressed. (Department of Public Expenditure and Reform)”.

To attempt to portray the Complainant as anything other than acting out of a genuine , legitimate duty of care goes against everything the policy stands for. “It is not essential, however, for the reasonable belief to be correct. All that is required is that the worker’s belief was founded on reasonable grounds, regardless of whether the belief is mistaken or not. For example, it may be reasonable for a worker to believe, based on what he /she knows and has witnessed, that a relevant wrongdoing has occurred because he or she is not aware of all the relevant facts. No worker will be deprived of the protections set out in the Act, including protection from penalisation, if it transpires that a relevant wrongdoing did not occur, is not occurring or is not likely to occur, provided he or she had a reasonable belief as set out above.

Background to the Claimant

The Claimant commenced employment with the Respondent company in February 2018 as a Project Worker in a specific residential service. However, there was a delay in the opening of that residential service.

In order to address this, the claimant was placed in an after-care service and reported to the residential manager. While no “Team Lead” role was approved by the Company, using the appropriate channels, the Residential Manager in question appointed the Claimant as a Team Leader on this service and he took on team lead type duties. The claimant’s duties included compiling rosters and addressing staffing needs.

The Claimant worked in this after care service, which provided care for one specific female service user, for the duration of his employment.

The claimant resigned his employment on 31 August 2018.

Background to the Company

The Respondent company is a young and outward looking organisation offering bespoke interventions to ‘hard to reach’ young people. The Respondent’s fundamental goal is to reach each young person ‘where they are at’ and through accepting this proceed to supporting them to find their full potential.

The Respondent provides intervention services to support young people in an array of living arrangements as set out in the young person’s care plan, working closely with the young person, their family and other agencies / statutory bodies to develop and deliver a trauma informed model of care that takes its influence from the AMBIT Model.

Background to “After Care”.  

As aforementioned, the Claimant was placed in a specific residential service for the duration of his employment with the Respondent company. The service delivered to the young adult service user in question, is referred to as “After-Care”.

“After Care” is described as offering “a wide range of supports which may include: drop in services, signposting services, advice, guidance, financial advice and support, allocation of a worker, advocacy with persons on behalf of the young person/ young adult. The participation and consent of the young person / young adult is paramount in the provision of aftercare services.”

The level of “after care” required will depend heavily on the needs of and consent of the young adult to whom it is delivered. It is clearly recognised that the needs of the service user may change over time and should be reviewed accordingly.

The provision of After-care services for young adults is contingent on the young adult in question being between the ages of 18-21.

The claimant alleges that he made a protected disclosure to a statutory body on 29^th July 2018. The respondent is unaware of any protected disclosure having been made, but the Claimant confirmed on the first hearing date, that he only made one protected disclosure, and that this protected disclosure comprised an email sent to two government agencies and the Respondent CEO. Its contents related to an issue that had arisen the previous night where a staff member was unexpectedly absent from work resulting in a requirement for cover.

In the circumstances, it was the claimant’s responsibility to arrange for alternative cover should it be required. It is worth noting that while the service user in question had been receiving after-care on a 2:1 ratio, this was, in any case, due to change to a 1:1 ratio on 1^st August, as recommended by the funding government agency. This change would result in an all female team working with the Client and as such, would necessitate the redeployment of the Claimant. While the change itself did not occur until 1^st August 2018, it is clear that it was communicated to the Claimant and other effected staff in advance of that date and indeed in advance of the Claimant’s alleged protected disclosure.

The claimant contacted the “on-call” resource on the date in question with a view to arranging for another staff member to work the shift. An attempt to facilitate this request was made unsuccessful due to the unavailability of cover at short notice.

The “on-call” resource’s recollection is that “[the Claimant] assured me [the service user] was fine and that she was heading out to attend a course ‘til around tea time so that gave us lots of time to look for staff. [The Claimant] then text me to ask had I got anyone around 7pm, once again I informed him I hadn’t so he text me to say he had a plan B”.

The Claimant emailed the Respondent’s HR Manager and CEO the following day to make them aware of the fact that no cover was available on the shift of the 28^th.

The claimant, in him email of 29 July, states that he supported the service user in question via text “and she appeared alright with this approach”, until late in the evening at which point “she became anxious and at one stage threatened to burn the house down if staff didn’t turn up before 10pm.” . The company would have thought that the claimant would contact the CEO, to escalate matters internally on that date, had the claimant felt that the situation required additional or urgent attention. In any case, the company were not opposed to the Claimant raising the matter when he did.

The claimant states that at this point he contacted Mr D, in a government agency “to make him aware of the situation”. This is not indicative of a protected disclosure – it is simply indicative of team leader escalating an issue. For clarity, no investigation by any government agency occurred on foot of this, on this date or any other date, nor is the respondent aware of the claimant ever having raised a protected disclosure. Had he wished to do so, the appropriate government agency operates a comprehensive Whistleblowing / Protected Disclosure policy. This policy is readily available and a quick google search will direct individuals to same. It is user-friendly and includes a reporting form. It is questionable therefore whether the Claimant intended his email of 29 July to constitute a protected disclosure, nor was it perceived as same.

In any case, as per the Claimant’s email of 29^th July, the client stayed with her foster parents for the night. This is wholly appropriate and in line with the after-care service ethos, which is that staff members should the young adult in living an independent lift.

The issue was thereby resolved.

Company Arguments  

The Law:

Under the Protected Disclosures Act 2014, a relevant wrongdoing is defined in eight specific terms;

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

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

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

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

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

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

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

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

The Claimant alleges that, for having made a protected disclosure to a “statutory body”, he was penalised in being excluded from a meeting and being offered work outside of Dublin.

 The nature of the Claimant’s protected disclosure, as alleged, was that he raised concerns to two government agencies about the care of the service user in his care. In particular, he allegedly raised concerns about the non-availability of cover for a shift on a specific day, which he says created risk.

No relevant Wrongdoing

The respondent submits that the Claimant did not make a protected disclosure in that the nature of the relevant wrongdoing alleged does not meet the definitions outlined in the Act.

Section 5(5) of the Act is clear in stating the following;

(5) A matter is not a relevant wrongdoing if it is a matter which it is the function of the worker or the worker’s 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 makes two arguments in relation to this point. Firstly, that the Respondent discharged its duty towards its client, who is an adult, and thus there was no act or omission on the part of the respondent, and, secondly that the scheduling of staff on the site in question was a function for the Claimant to manage.

The respondent did not act or omit to act in any manner constituting a relevant wrongdoing. Provisions were in place to ensure that the shift would be covered. The Claimant had responsibility for same. An unforeseen and sudden event caused the nonattendance of one staff member on the date in question. The respondent further had back up provisions in place to deal with absences. On the date in question, no cover was found notwithstanding same. However, this situation was the exception and not the rule and the respondent had taken reasonable steps to prevent against it. Indeed, when it became clear that no cover would be available the Claimant deployed “plan B”, which resulted in the Claimant staying with her Foster Parents. This is wholly appropriate in the circumstances and it would not be uncommon for the client to opt to stay with her foster parents.

It is clear that the claimant was acting within the remit of his role as Team Leader when attempting to obtain cover and notified the company of the shortage in cover the following day. At no point did he state that in doing so he wished to raise a protected disclosure, and thus the statement in his submission that his email “was seen” as a protected act is refuted.

It is the respondent’s strong contention that the claimant was simply discharging his duties as team leader by outlining the situation to Management the following day. It was further unremarkable that he outlined same to the Aftercare Manager in or a staff member in two government agencies given that, again, scheduling was one of his responsibilities.

Where rostering issues arose, it was the Claimant’s function to detect and resolve same and thus the matters at the core of this claim do not constitute a relevant wrongdoing.

In the case of Donegal County Council v Liam Carr in this regard. In particular the Chair’s attention is drawn to the below extracts;

“The protection provided by..the Act is afforded to persons who have made a Protected Disclosure within the meaning of the Act. It follows that the Court must first establish that a Protected Disclosure has been made, before it can examine whether penalisation within the meaning of the Act has occurred. In the event that a Protected Disclosure has not been made, the claim must fail”.

“There can be no doubt that the complaints made by the Appellant to his Managers…were made by him pursuant to the discharge of his duties….”

“On a plain reading of the Act the Court finds that the complaint made by the Appellant in this case is misconceived. The complaints made by the Appellant in pursuance of his duties…were not Protected Disclosures”.

Not properly disclosed

Without prejudice to the Respondent’s position that the Claimant has not raised a relevant wrongdoing for the purpose of the Act, the Respondent states that, were the Adjudication Officer to find that a relevant wrongdoing did occur, it was nonetheless not properly disclosed. The email of 29 July 2018 in which the Claimant does not refer to the contents constituting a protected disclosure at any stage, nor would it appear to constitute any more than an employee flagging an issue to the relevant internal and external stakeholders.

It would appear that the Claimant is now seeking to engineer a protected disclosure for the purposes of gaining the protections of the Act. 

The Respondent refers the Adjudication Officer to ADJ-3371 in which the Adjudication Officer stated;

I note that from 10th August 2015 the Complainant communicated by email with her colleagues, including the MD in relation to work related issues. There was no explanation given by the Complainant as to why she did not put in writing “protected disclosure” during the course of her employment from 2015

In this case too it is most surprising that the Claimant did not express that the contents of his email were intended as a protected disclosure, had this indeed been his intention. The employer certainly did not perceive it to have been a protected disclosure, particularly given that it was the claimant’s responsibility to arrange for shift cover, and therefore could not have penalised him for having made a protected disclosure.

Furthermore, the Respondent submits that no protected disclosure could have been made to any government agency in the circumstances. Were it the case that either organisation had received a protected disclosure from the Claimant, they would undoubtedly have contacted the Respondent to investigate same. This did not happen. The funding agency operates a protected disclosure policy, available using a quick google search, yet it was not utilised by the Claimant. It is the respondent’s contention that if the Claimant had believed himself a Whistleblower he would have been clear about same in his reporting of the staffing issue on 28^th July and would have used the appropriate policy.

The Respondent’s position, as outlined above, is that it was not made aware of any relevant wrongdoing, either directly by the Claimant, or by any government agency.

The respondent further comments that the purpose of the Act is to encourage employees to disclose wrongdoings to their employer directly, unless this would be inappropriate in some way. This principle is underpinned in the WRCs Code of Practice on Protected Disclosures.

The circumstances in which a disclosure to a person other than an employer is protected, are limited and it is the Respondent’s contention that the thresholds for same have not been met.

Section 6 of the Act states as follows;

6. (1) A disclosure is made in the manner specified in this section if the worker makes it—

(a) to the worker’s employer, or

(b) where the worker reasonably believes that the relevant wrongdoing which the disclosure tends to show relates solely or mainly—

(i) to the conduct of a person other than the worker’s employer, or

(ii) to something for which a person other than the worker’s employer has legal responsibility, to that other person.

The claimant does not appear to allege that the conduct he complains of relates to either government agencies, nor do they have legal responsibility for the rostering of the respondent’s staff.

Neither government agency is a “prescribed person” for the purposes of Section 7 of the Act, nor is it alleged by the Claimant that he was penalised for making a disclosure to a Minister or a legal advisor, for the purposes of Section 7-9 of the Act.

Section 10 of the Act provides for disclosure in other cases, but only where the below criteria are met.

(a) that, at the time the worker makes the disclosure, the worker reasonably believes that the worker will be subjected to penalisation by the worker’s employer if the worker makes a disclosure in the manner specified in section 6, 7 or 8,

(b) that, in a case where no relevant person is prescribed for the purposes of section 7 in relation to the relevant wrongdoing, the worker reasonably believes that it is likely that evidence relating to the relevant wrongdoing will be concealed or destroyed if the worker makes a disclosure in the manner specified in section 6,

(c) that the worker has previously made a disclosure of substantially the same information—

(i) in the manner specified in section 6, or

(ii) in the manner specified in section 7 or 8,

And (d) that the relevant wrongdoing is of an exceptionally serious nature.

The Respondent contends that these criteria have not been met in this instance.

On the basis of the foregoing the respondent submits that no protected disclosure was made to either the Respondent or any government agency, but that in any case, a disclosure to a government agency would not gain protection under the Act in these circumstances.

Without prejudice to the aforementioned arguments as to whether the contents of the Claimant’s email include a relevant wrongdoing, and/or whether a disclosure was made in a protected manner, the respondent states the following in relation to penalisation.

It is noted that the Claimant alleges that he was penalised in two ways by the respondent company;

By being excluded from a meeting on 30^th July, and

By being offered hours in Dundalk, which he implies, was not his preferred location.

It is worth noting that, as previously outlined, the Client in this case had been on a 2:1 ratio service plan. It was decided, prior to the Claimant’s alleged protected disclosure, that it would be appropriate to move the Client to a 1:1 ratio. This decision was made in consultation with the Client, who very much supported and indeed drove the change. Consultation was also had with the funding government agency who were in agreement with same also.

On foot of the move to a 1:1 service, it was decided that the Client’s team would be an all-female team into the future. This resulted in a requirement to redeploy the Claimant, among other male staff members, to other sites. It is noteworthy that the Claimant’s contract of employment defines his place of work as being in the “Leinster Area”.

The Claimant’s exclusion from the meeting of 30^th July is very easily explained. The meeting of 30^th July was a team meeting, and the participants were the Client’s new (female) team. The meeting was set up on 27^th July – prior to the Claimant’s alleged protected disclosure. The Claimant was excluded from the invitation to the meeting on the basis that he would no longer be part of that Client’s team. Given the fact that the meeting was arranged prior to his alleged protected disclosure, it could not have been a result of same. Taking this chronology into account it is not possible for the Claimant’s exclusion from this meeting to have constituted penalisation under the Act. The respondent relies on ADJ-3371 once more in this regard.

The proposed transfer of the Claimant to Dundalk was also a result of a change in staff ratio for the service user in question.

 It is clear that the requirement for the Claimant to be redeployed pre-dated his alleged disclosure and thus it cannot be said that “but for” his alleged protected disclosure, he would not have had to move. The respondent offered him hours in Dundalk in the hopes of retaining him, as the hours available there were similar to those he had previously been working. The claimant queried by telephone whether the Dundalk role would be a Senior position but did not raise any issue in relation to the location until after he had resigned on 31^st July.

The decision to move the Claimant to 1:1 was made prior to the claimant’s alleged disclosure and therefore could not constitute penalisation. In the absence of a finding that “but for” the claimant having made a protected disclosure, he would not have been transferred to Dundalk, the respondent submits that the Adjudication Officer cannot find that he was penalised under the Act. In this regard, I refer to ADJ-1721 (Appendix 13), in which the Adjudication Officer held;

 “While the complainant was obviously dissatisfied with the new role, taking the above factors into account, there is insufficient evidence to conclude that the “but for” test has been met and that the case of penalisation has been made out.”

Conclusion

 On the basis of the foregoing, it is respectfully requested the Adjudication Officer upholds the Respondent’s position and dismiss this claim in its entirety.

The Complainant submitted two complaints with the Workplace Relations Commission, both complaints related to Penalisation, the first complaint submitted under Schedule 2 of the Protected Disclosures Act, 2014 and the second under Part 14 Section 103 (55M) of the Health Act of 2007.

Under the Protected Disclosures Act Penalisation is described in Section 3 of the Act as:

“penalisation” means any act or omission that affects a worker to the workers detriment, and in particular includes –

a)      suspension, lay-off or dismissal

b)      demotion or loss of opportunity for promotion

c)       transfer of duties, changes of location of place of work, reduction in wages or changes in working hours,

d)      the imposition or administering of a reprimand or other penalty, discipline (including a financial penalty)

e)       unfair treatment

f)        coercion, intimidation or harassment,

g)      discrimination, disadvantage or unfair treatment,

h)      injury, damage or loss, and

i)        threat of reprisal

The Health Act 2007 (Part 14/Part 9A – section 55M) states that “An employer shall not penalise an employee for making a protected disclosure”.

In August 2018 the appropriate government agency introduced a booklet that is entitled “Protected Disclosures Procedures”, this booklet outlines the procedure to be followed when making a protected disclosure and outlines differences between what a Protected Disclosure is under the Protected Disclosures Act, 2014 and the Health Act 2007. While there are many similarities there are also a number of differences, the Complainant has an entitlement to submit claims under both Acts.

The Complainant did not follow the correct process/ procedure in making a complaint under the Health Act 2007.

In this instant case the Complainant has claimed that he has been penalised by being excluded from attending a meeting in relation to the ongoing care of an individual, the ratio of care was going from 2 to 1 to 1 to 1 in the days ahead and when the change to 1 to 1 was introduced the team would be all female.

The second alleged incident of penalisation is that the Complainant contends that he was verbally offered a position in Dublin, this never materialised, and the Complainant was offered a placement in Dundalk which was unacceptable to the Complainant.

The Complainant also contends that “The cessation of my employment was a common but blatant case of penalisation”.

In relation to the first complaint of penalisation where the Complainant alleges that he was omitted from a very important meeting in relation to the person that he was supporting. I have considered this complaint and concluded that if the subject of the meeting was the ongoing care of the individual with an all-female team there was no need for the Complainant to attend. I note that all in attendance at this meeting were females. I do not consider this to be penalisation of the Complainant.

With regard to the Complainant not been offered a placement in the Dublin area I note the Respondent has quoted from an employment contract that the place of work will be the Leinster area. The Complainant claims he was never issued with said contract. I noted that the Respondent included pages 1 of 6 and 2 of 6 at appendix 2 of their submission – it is suspicious that pages 3 to 6 are missing, what was presented was unsigned.

The Complainant contends that he was offered work in Dublin and this offer was made by a senior member of the Respondent management team on 23^rd July 2018 during a telephone call with the Complainant and some weeks beforehand in the Respondent’s head office.

The Complainant was going on annual leave for the first two weeks in August and was anxious to establish what hours and in what location he would be working in on his return from annual leave. On 31^st July 2018 the Complainant sent an email to a senior member of management informing him that he did not think Dundalk was a suitable location for him to work in.

By email dated 31^st July 2018 at 12.47pm and sent to senior management the Complainant states:

“I have applied for annual leave from 1^st to 16^th August inclusive and when this annual leave has ended and I have not received alternative work in (Respondent named). I will take it that I have received minimum notice, under the Minimum Notice and Terms of Employment Act 1973 to 2001. I would therefore request that all outstanding annual leave and other money owed to me be paid and that a P45 would be issued to me ASAP please.

I have enjoyed the challenge of working with the young person which I supported and am grateful for (Respondent named) to have allowed me with the support of my manager, the opportunity to implement my built-up years of experience to encourage and support the young person to move forward. The visible transition from February to now has been remarkable and I would like to take this opportunity to also wish the young person my team supported and my colleagues the very best in the future.

I would like to thank (Respondent named) and wish them all the best in the future”.

Kind Regards

This email was accepted by the Respondent as the Complainant’s resignation from employment.

In relation to the offer of a position in Dundalk I do accept that the Complainant was verbally offered a position in Dublin on two separate occasions and when considering the timing of the offer in Dundalk I find there is a causal link between the offer and the making of the protected disclosure, I therefore find that the Complainant was penalised.

  The Complainant contends that the ending of his employment was a blatant case of penalisation. The Respondent has policies to address employee grievances and these were not fully utilised or utilised at all by the Complainant. It is for this reason that this element of the complaint must fail.

In being offered a position in Dundalk after being verbally offered a position in Dublin was a case of penalisation and I now order the Respondent to pay compensation to the Complainant of €2,500.

This amount of compensation should be paid to the Complainant within 42 days from the date of this decision.

Protected Disclosures Act 2014 – penalisation.