Complainant

Respondent

Anonymised Parties

A Care Assistant

A Care Facility.

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00021731-001

11/09/2018

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

CA-00021731-002

11/09/2018

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

CA-00021731-003

11/09/2018

The Complainant was employed as a Care Assistant in the respondent care Home from 16th of February 2018 to 20th of June 2018 and had less than 12 months service when his employment was terminated.    The Complainant submits that he was unfairly dismissed having made a number of protected disclosures regarding alleged wrongdoings in the care facility. He is therefore seeking protection under the Unfair Dismissals Act 1977-2015 for alleged penalisation for making a protected disclosure.

The complainant has submitted a separate claim under the Protected Disclosures Act claiming that he was subjected to other acts of penalisation and adverse treatment due to having made protected disclosures.   He has also submitted a claim of penalisation under Section 28 of the Safety, Health & Welfare at Work Act, 2005.

The respondent in this case has raised a number of objections in relation to documentation submitted by the complainant in support of his claims. The respondent asserts that the documentation was improperly obtained by the complainant and contains personal private information relating to patients of the respondent which the complainant took from the respondents premises without permission.  In relation to the admissibility of such documentation this matter was the subject of a preliminary hearing on 19th of September 2019.  

The respondent at the hearing raised concerns regarding how this material was obtained by the complainant asserting that the documentation which relates to personal private information of patients of the respondent and was taken from the respondents premises by the complainant without permission.   The complainant claimed to have found certain documents in the rubbish bin of the respondent and so asserts that he is entitled to rely on such documentation.   The respondent submits that the documentation was improperly obtained by the complainant and contains personal private information relating to patients of the respondent.   The respondent has submitted that the complainant should not be allowed to rely on this documentation in support of his claims. There was also some discussion regarding the relevance of the documentation submitted in support of the claims.

Having considered the arguments advanced I am satisfied that it was not possible at the outset to exclude documentation on grounds of its relevance or irrelevance and in order to address the issue of personal private information of patients I requested that redacted copies of the documentation be provided in order to exclude personal information of patients. Following my request redacted documentation was provided. I proceeded to a hearing of the substantive matters on 23rd of January 2020.    

Some of the documentation which the complainant sought to rely on at the substantive hearing was not fully or adequately redacted and still contained some personal information relating to patients of the respondent. In such instances the respondent objected to documents or parts of documents being relied upon during the course of the hearing and I dealt with these matters and with the respondents objections to certain documents during the course of the hearing.

The complainant at the hearing also raised issues in respect of a Data Access request which he had submitted to the respondent. The complainant repeatedly asserted that the respondent in response to this request should have provided him with all documentation created by him in the course of his work even where such documentation contained information relating to the respondents patients. The respondent in reply advised the complainant that he was not entitled to information/documentation where same contained personal private information and details of patients.  

I should add that matters relating to Data Protection are matters for the Data Protection Commissioner and are not within my jurisdiction.

The complainant has submitted three complaints under the Unfair Dismissals Act, the Protected Disclosures Act and the Safety Health and Welfare at Work Act.

The complainant in this case does not have the required 12 months service to take a claim under the Unfair Dismissals Act and is claiming that his dismissal arose from making protected disclosures.   The complainant in his penalisation claim has submitted that he was subjected to other adverse treatment and acts of penalisation as well as dismissal arising out of having made protected disclosures. The respondent at the hearing argued that the complainant was seeking to rely on the same set of facts to ground all three complaints and submitted that he is precluded from doing so by virtue of Henderson V Henderson. Both parties were given the opportunity to make post hearing submissions on these matters the last of which was provided on 20th of May 2020.

The Respondent in this case denies that the Complainant was unfairly dismissed for making Protected Disclosures but submits that he was dismissed during his probationary period due to performance issues. The Complainant who only had four months service is seeking to use the Protected Disclosures Act 2014 to bring himself within the scope of the Unfair Dismissals Acts 1977-2015.

Having considered the submissions made and given that the Unfair dismissals claim in this case is grounded in the alleged protected disclosures I have decided that the most appropriate course of action is to deal with the Protected Disclosures claim first in order to establish whether or not protected disclosures were made which resulted in the penalisation of the complainant up to and including the complainant’s dismissal.   If I am satisfied that such protected disclosures were made, I must consider whether as a result of such disclosures the complainant was penalised and suffered a detriment in his employment up to and including his dismissal.   I am cognisant however of the fact that I may not grant relief twice in relation to the alleged Unfair Dismissal.    The complainant has also submitted a claim under Section 28 of the Safety, Health & Welfare at Work Act, 2005.

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

CA-00021731-002

11/09/2018

The Complainant submits that

He was employed by the respondent as a Care Assistant from 16th of February to 20th of June 2018

The Complainant submits that throughout his employment he had raised issues of concern about various wrongdoings in the respondents practices and treatment of residents

The Complainant submits that he was penalised for raising these matters as follows:

By having his hours reduced,

By being sent to work in a different location,

By being reprimanded and humiliated by his manager,

By being dismissed from his employment.

The Respondent submits that

The complainant did not make any of the issues of which he now complains known to his employer prior to his dismissal.     Therefore, he cannot have been penalised or dismissed on the basis of making such disclosures as no such disclosures were made during the period of his employment.

the complainant was dismissed during his probationary period due to issues with residents and with other team members,

these issues were raised with the complainant in his performance review meeting in May and he was placed on a support improvement plan at the time,

The complainant failed to show the required improvement and his contract was terminated in June 2018,

The complainant’s hours were not reduced but varied as he was on a flexible contract with no set hours,

The complainant was offered hours in a different location which he initially agreed to and undertook but later stated that location B was too far and so he was not offered any further hours in location B in accordance with his wishes.

The complainant has submitted that he was subjected to adverse treatment and acts of penalisation arising out of having made protected disclosures.   He submits that these acts of penalisation included having his hours reduced, being moved to a different location and being reprimanded and humiliated by his manager. The complainant was dismissed from his employment after four months service and submits that his dismissal was due to his having raised protected disclosures.    

Applicable Law

Section 5 of the Protected Disclosures Act 2014     defines Protected Disclosures as follows:

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

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

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

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

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

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

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

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

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

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

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

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

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

(4) For the purposes of subsection (3) it is immaterial whether a relevant wrongdoing occurred, occurs or   would occur in the State or elsewhere and whether the law applying to it is   that of the State or that of any other country or territory.

(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.

(6) A disclosure of information in respect of which a claim to   legal professional privilege could be maintained in legal proceedings is not     a protected disclosure if it is made by a person to whom the information was   disclosed in the course of obtaining legal advice.

(7) The motivation for making a disclosure is irrelevant to   whether or not it is a protected disclosure.

(8) In proceedings involving an issue as to whether a   disclosure is a protected disclosure it shall be presumed, until the contrary     is proved, that it is.

The Complainant has argued that he made protected disclosures to the respondent during the course of his employment relating to the health and safety of residents and other wrongdoings and submits that as a consequence he was penalised via a reduction in his hours, a change in his work location and his ultimate dismissal in June 2018. He also submits that the respondents failure to provide him with a written reference upon leaving was a further act of penalisation.  

The complainant at the hearing outlined the alleged protected disclosures made by him during his employment which he has submitted resulted in acts of penalisation. The complainant at the hearing cited examples of suggestions made by him in the course of his work where he believed there to be better ways of doing things when caring for residents in the respondents care, the complainant advised the hearing that he had he made suggestions as to how a particular resident might be encouraged to eat his breakfast. The complainant advised the hearing that he had made suggestions regarding the timing of certain medication for some residents e.g. whether medication should be taken at or before bedtime and /or the way in which medication was taken such as with or without water. The respondent in response to this stated that all medication was given in accordance with the GP instructions contained in the Kardex for each resident.  The complainant disputed that this was the correct method and or timing of the medication in some cases. The respondent advised the hearing that the complainant was not qualified to administer medication as he had not passed his Safe Administration of Medication (SAM) training.

In asserting that he had made protected disclosures the complainant referred to two occasions in March 2018 where he had counted the cash belonging to two of the respondents residents and found it to be €10 short for each. The respondent stated that the complainant had raised this as an issue in May 2018 following which the respondent conducted an inquiry and audit into the matter and concluded that there were no irregularities as the cash was accounted for and the €10 for each of the two residents had been used to buy personal items requested by the residents and with the residents express permission in accordance with the respondents procedures.   The respondent advised the hearing that it had retained receipts as proof of said purchases.

The complainant also referred to an incident involving a complaint made to the respondent by a family member of a resident where the resident in question Mr. P was sent for a day out without having had a shower and his family member had complained about this stating that there was a smell of urine from the resident on the day in question. The family member of the resident made a complaint about this to the respondent which was investigated by the respondent.   The respondent advised the hearing that the complainant had not raised the issue in respect of the care of the resident in question Mr. P but stated that the matter was raised with the Director of Care Ms. B by the residents brother in law when the respondent received a complaint from Mr. Ps brother in law.   The respondent stated that the complaint received by phone from Mr. P’s brother in law had specifically mentioned the complainant in the context of an interaction which Mr. Ps brother in law had had with the complainant when he raised the issue with the complainant on the day of the incident.   The respondent told the hearing that Mr. Ps brother in law had advised the respondent that he felt that the complainant was reluctant to listen to his complaint when he spoke to him and seemed to think that he knew the resident better.  

The respondent advised the hearing that this complaint emanated from the resident’s brother in law and was dealt with by the respondent and stated that the family member in question was satisfied with the response and that the complaint was then closed.  There was also a discussion at the hearing in respect of which staff member was responsible for failing to ensure that the resident in question had been showered before going for his outing.   The complainant had been on duty later that day but stated that it was not his responsibility to shower the resident as the staff member on duty the night before should have done this. In any event it is clear that this incident involved a complaint from a resident’s family member to the respondent and cannot be considered as a protected disclosure made by the complainant.

The complainant also outlined occasions where he had been reprimanded due to patients not receiving their medication on time. The complainant stated that he was not responsible for administering the medication as he had not been trained in administering medication, but he stated that the respondent had reprimanded him on occasions where patients in his charge had not received their medication on time.     The respondent advised the hearing that the complainant was not permitted to administer medication at the time as he had not completed his Safe Administration of Medication (SAM) training having failed the test the first time he took it and he had to retake it at a later date.

The respondent advised the hearing that the extent of the complainant’s responsibility with regard to medication for patients prior to completion of his SAM training was to ask a colleague with the requisite training to administer the medication at the time it was due.   Part of his role was to ensure that residents were given their medication on time by calling another carer to administer the medication and notifying staff at handover whether such medication had been given and at what time.     This meant that the complainant had to call on another staff member to administer the medication as he was not qualified to do so. The complainant submits that he was reprimanded for not administering medication.   The respondent advised the hearing that the complainant was not reprimanded for failing to administer medication as he was not qualified to do so but stated that he was reprimanded for failing to alert a staff member that medications were due to be given to certain residents in his care while he was on duty.  The respondent advised the hearing that there was a clear procedure in place whereby the complainant was to inform another staff member when medications were due to be given to residents in his care. The respondent stated that the complainant had failed to follow this procedure on at least 3 occasions. The respondent stated that this matter was raised with the complainant in his supervision meeting and is detailed in the supervision document dated 9th of March 2018. The respondent provided a supervision note drawn up by the complainant’s supervisor on 9th of March 2018 and signed by both the complainant and his supervisor Ms. B.   This agreement states that this was the third such omission and that the complainant was advised that any further incident of this nature may impact his employment.

The respondent advised the hearing that it had also had an issue with the complainant in April 2018 when the complainant during his SAM exam had had questioned the right of HIQA to enter the respondent premises at any time and argued that he would not allow HIQA access to premises if they called unexpectedly in the middle of the night.     The respondent stated that the DOC had advised the complainant that he is required to allow HIQA access to the premises at any time once they presented their identification. The respondent stated that the complainant refused to accept this and continually challenged the Director of Care (DOC) when she advised him of this stating that he would not allow HIQA access in such circumstances.

In considering whether the incidents outlined by the complainant amount to protected disclosures I note that the complainant places heavy reliance upon the incident where the resident Mr. P was brought out for the day without having had a shower and whose family member subsequently made a complaint to the respondent about the matter.   The respondent stated that this complaint came from a family member of the resident and was treated as such by the respondent. The respondent stated that this complaint did not emanate from the complainant and cannot in any way be considered to amount to a protected disclosure.     There was also some discussion at the hearing as to whose responsibility it was to ensure that the resident in question had been showered before going out as the complainant had been on duty later that day, but he stated that the shower should have been given by the person on duty the previous night. The respondent at the hearing stated that the complaint from the residents brother in law had specifically mentioned a conversation he had with the complainant on the day in question and his dissatisfaction with the interaction.

The complainant at the hearing gave a lengthy account of occasions where he felt he knew better ways of doing things including administering medication and encouraging residents to eat before taking medication and has sought to rely on these to ground his claim of penalisation under the protected disclosures act.

The respondent advised the hearing that if the complainant suggested improvement to the residents care or better ways of doing things then this was part of his job and does not amount to a protected disclosure.

The complainant in outlining his case cited a reduction in his hours and a change in his location of work as acts of penalisation as well as his ultimate dismissal.   The respondent advised the hearing that the complainant’s hours were flexible as he was employed on a relief contract with no guarantee of hours.   The respondent stated that all of its locations share staff when additional staff are needed in a particular location.   The respondent advised the hearing that hours became available in a different location and these were offered to the complainant who voluntarily agreed to work some shifts in the other location.   Having completed a number of shifts in the other location the complainant advised the respondent that it was too far for him to travel and following which he was not asked to go there again.   The respondent stated that the complainant was offered hours in this location as he had complained that he was not receiving enough hours.   The respondent added that when drawing up rosters it had to firstly ensure that its full-time staff members were given their specified hours before relief staff. In addition, the respondent stated that the complainant was not qualified to administer medication to residents as he had not completed all stages of his SAM training.

The complainant advised the hearing that he was put on a performance improvement plan which resulted in his ultimate dismissal and that this amounts to penalisation following protected disclosures.    The respondent advised the hearing that the complainant had a probationary review meeting on the 8th of May 2018, this was attended by Ms. B the complainant’s line manager and Ms. J. The respondent advised the hearing that a number of issues were raised with the complainant at this meeting the outcome of which was the development of a Support improvement plan for the complainant to address the following areas:

To pass competency assessment and exam for safe administration of medication (SAM).

To communicate effectively with colleagues. This includes seeking clarification on issues as well and working respectfully and considerately to ensure collaborative approach.

To engage respectfully with line manager.

To engage with line manager about roster issues and issues arising from day to day working. This was to be reviewed on the 5th of June 2018.

The respondent advised the hearing that it is essential that staff members are able to engage effectively with residents and with each other.   The respondent stated that the complainant did not engage effectively with residents or with his colleagues.   The respondent stated that one resident while in the complainant’s care had begun taking his meals elsewhere and spending more time outside the home when the complainant was on duty. The respondent stated that the resident in question complained that his meals were not varied and on one occasion the DOC noticed that a meal served to the residents by the complainant consisted of sausage rolls and cauliflower.   The respondent stated that part of the complainant’s duties related to cooking meals for the residents and stated that the complainant failed to demonstrate the necessary cooking skills despite claiming he possessed same at interview. The respondent advised the hearing that the complainant’s team reported continued poor engagement with them on handover and a reluctance to discuss information.  The respondent stated that the complainant also failed to pass his SAM training on the first occasion and was required to re take the exam.

The respondent advised the hearing that the complainant was informed at his probation review meeting on the 8th of May 2018 that a review would be carried out on the 5th of June 2018. The complainant was invited to a meeting on the 14th of June, but he failed to attend. The meeting was rescheduled for the 20th of June 2018. The complainant was at all times aware that the meeting was a follow-up probationary meeting.

The respondent advised the hearing that as the complainant had not met the required standard and that he could not demonstrate effective engagement with residents and colleagues he was informed that he had not passed his probationary period and his employment was being terminated.   A full explanation was provided to the complainant both orally and in writing.  The respondent added that while the complainant did not make any protected disclosures during his employment his dismissal was entirely unrelated to any issue or complaint he may have raised, and it was solely based on his performance and lack of suitability for the role.

The complainant has submitted that the failure of the respondent to provide him with a personal reference was further penalisation following his dismissal, the respondent advised the hearing that is not its policy to provide references to employees upon leaving but if a prospective new employer contacts the respondent then references are provided upon receipt of such communication. The respondent advised the hearing that it did not receive any communication seeking a reference from any prospective new employer on behalf of the complainant.

Furthermore, the respondent advised the hearing that the complainant was dismissed as he had failed to engage effectively with colleagues and residents and despite being informed of these shortcomings and being given ample opportunity to improve, he failed to address these issues raised adequately or at all.   The respondent stated that these issues were raised with the complainant in his probationary review meeting of May 2018 and that following this meeting he was placed on a performance improvement plan. Th respondent stated that the complainant despite this support improvement plan had failed to show the necessary improvement in his performance and so his contract was terminated on 20th of June 2018.

The respondent advised the hearing that the complainant had not at any time during his employment made any protected disclosure within the meaning of the Protected Disclosure Act 2014.    It follows therefore that the complainant could not have been penalised or dismissed for making such disclosure.    Moreover, the respondent submits that the complainant’s dismissal related solely to his unsatisfactory performance of the role and his inability to engage effectively with staff and residents.

The complainant at the hearing also sought to raise issues in respect of documentation which he had requested under a data access request and documents which he claims he was entitled to due to the fact that he had created them despite the fact that they contained personal information of patients. I reminded the complainant that the WRC is not the appropriate forum to deal with this matter.

I am satisfied from the totality of the evidence adduced that there were ongoing concerns regarding the Complainant’s performance and engagement with colleagues and residents which were raised with him as part of the probationary review process and which led to the decision to terminate his contract of employment.

Having examined the allegations made and the totality of the evidence adduced I am satisfied that the incidents and examples outlined by the complainant do not amount to protected disclosures within the meaning of the Act and do not concern ‘relevant information’ as defined in the Act.

Having considered all of the evidence adduced I am therefore satisfied the Complainant in this case was not penalised following the making of protected disclosures of relevant information.

Accordingly, I declare this claim to be not well founded.

Having considered all of the evidence adduced I am therefore satisfied the Complainant in this case was not penalised following the making of protected disclosures of relevant information.

Accordingly, I declare this claim to be not well founded.

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

CA-00021731-001

11/09/2018

The complainant submits that

He was unfairly dismissed after 4 months in the respondents employment due to having made Protected Disclosures.

The respondent submits that

The complainant was dismissed during his probationary period for failing to engage effectively with colleagues and residents and despite being informed of these shortcomings and being given ample opportunity to improve, he failed to address these issues raised adequately or at all,

The complainant did not make Protected Disclosures,

The complainant does not have 12 months service to pursue a claim under the Unfair Dismissals Act.

The complainant was employed by the respondent from February to June 2018 and thus does not have the required 12 months service to pursue a claim under the Unfair Dismissals Act.   The complainant who only had four months service is seeking to use the Protected Disclosures Act 2014 to bring himself within the scope of the Unfair Dismissals Acts 1977-2015.

In light of my finding at CA-00021731-002 that the incidents cited by the complainant do not amount to protected disclosures within the meaning of the Act and do not concern ‘relevant information’ as defined in the Act, I concluded that the Complainant in this case was not penalised following the making of protected disclosures of relevant information. Accordingly, I find that the complaint under the Unfair Dismissals Act has been disposed of and I declare this claim to be not well founded.

I declare this claim to be not well founded.

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

CA-00021731-003

11/09/2018

The complainant submits that

he was penalised for complying with or making a complaint under the Safety, Health and Welfare at Work Act

he did not receive SAM Medication training on recruitment, to the end of employment complainant did not receive full medication training.

The respondent submits that

The complainant has failed to set out any circumstances which would constitute a breach of this act.

27.—(1) In this section “penalisation” includes any act or omission by an employer or a person acting on behalf of an employer that affects, to his or her detriment, an employee with respect to any term or condition of his or her employment.

(2) Without prejudice to the generality of subsection (1), penalisation includes—

   (a) suspension, lay-off or dismissal (including a dismissal within the meaning of the Unfair Dismissals Acts 1977 to 2001), or the treat of suspension, lay-off or dismissal,

   (b) demotion or loss of opportunity for promotion,

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

   (d) imposition of any discipline, reprimand or other penalty (including a financial penalty), and

   (e) coercion or intimidation.

   (3) An employer shall not penalise or threaten penalisation against an employee for—

   (a) acting in compliance with the relevant statutory provisions,

   (b) performing any duty or exercising any right under the relevant statutory provisions,

   (c) making a complaint or representation to his or her safety representative or employer or the Authority, as regards any matter relating to safety, health or welfare at work,

   (d) giving evidence in proceedings in respect of the enforcement of the relevant statutory provisions,

   (e) being a safety representative or an employee designated under section 11   or appointed under section 18   to perform functions under this Act, or

   (f) subject to subsection (6), in circumstances of danger which the employee reasonably believed to be serious and imminent and which he or she could not reasonably have been expected to avert, leaving (or proposing to leave) or, while the danger persisted, refusing to return to his or her place of work or any dangerous part of his or her place of work, or taking (or proposing to take) appropriate steps to protect himself or herself or other persons from the danger.

   (4) The dismissal of an employee shall be deemed, for the purposes of the Unfair Dismissals Acts 1977 to 2001, to be an unfair dismissal if it results wholly or mainly from penalisation as referred to in subsection (2)(a).

   (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.

   (6) For the purposes of subsection (3)(f), in determining whether the steps which an employee took (or proposed to take) were appropriate, account shall be taken of all the circumstances and the means and advice available to him or her at the relevant time.

   (7) Where the reason (or, if more than one, the principal reason) for the dismissal of an employee is that specified in subsection (3)(f), the employee shall not be regarded as unfairly dismissed if the employer shows that it was (or would have been) so negligent for the employee to take the steps which he or she took (or proposed to take) that a reasonable employer might have dismissed him or her for taking (or proposing to take) them.

The complainant in this case is also asserting that the employer failed in its duty under Section 10 of this Act in respect of Instruction, training and supervision of employees.  

10.—(1) Without prejudice to the generality of section 8 and having regard to sections 25 and 26, every employer shall, when providing instruction, training and supervision to his or her employees in relation to their safety, health and welfare at work, ensure that—

( b) employees receive, during time off from their work, where appropriate, and without loss of remuneration, adequate safety, health and welfare training, including, in particular, information and instructions relating to the specific task to be performed by the employee and the measures to be taken in an emergency,

The complainant in making this assertion stated that he did not receive the third stage of his (Safe Administration of Medication (SAM) training before his employment was terminated. The respondent advised the hearing that the complainant had failed the first stage of his SAM training and so had to repeat this exam. The respondent stated that consequently the complainant had not completed all stages of SAM training by 20th of June 2018.  

Under Section 27 and Section 28 of the Safety, Health & Welfare at Work Act, 2005 employers are prohibited from penalising (defined as dismissal, demotion, transfer, imposition of duties, coercion or intimidation) or threatening to penalise employees, who are performing any duty, exercising rights or who make any complaints relating to safety and health or who give evidence in enforcement proceedings.   Any dismissal or penalisation in such manner can be deemed to be an unfair dismissal within the meaning of the Unfair Dismissals Acts and an employee may also submit a complaint to the WRC that their employer has penalised them for exercising their rights under the safety and health legislation.   However, having said that I should clarify that responsibility for other breaches under the Safety, Health & Welfare at Work Act, 2005 do not fall within the jurisdiction of the WRC.

In considering the claims advanced under Section 28 it is clear that an employee can only be successful in a penalisation claim under Section 28 of the 2005 Act if they can prove that they:

a) made a complaint to their employer in respect of a health and safety matter; and

b) suffered a detriment as a result of the actions of their employer; and

c) It can be proven that they would not have suffered this detriment had a complaint not been made in the first place.

The complainant in the present case has also submitted claims in respect of alleged penalisation under the Protected Disclosures Act and the Unfair Dismissals Act and these are dealt with in CA-00021731-001 & CA-00021731-002.

Having heard the evidence adduced in relation to all of these claims it is clear that the complainant’s claims in respect of penalisation and dismissal have already been dealt with in my decision in respect of CA-00021731-002. As regards the claim in respect of alleged penalisation for reporting a health and safety matter, I am satisfied having regard to the totality of the evidence adduced that the complainant has failed to establish that he made a complaint to the respondent in respect of a health and safety matter for the purposes of the Act and that he suffered a detriment as a result of this.  

I am thus satisfied that the complainant has not adduced any evidence in support of a separate claim under Section 28 of the Safety, Health & Welfare at Work Act, 2005 and accordingly I declare this claim to be not well founded.

I declare this claim to be not well founded.