ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00019062
Parties:
| Complainant | Respondent |
Anonymised Parties | Care Worker | Residential Care Setting |
Representatives | Self | Sam Saarsteiner Clark Hill Solicitors |
Complaint(s):
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-00024907-001 | 09/01/2019 |
Date of Adjudication Hearing: 05/12/2019
Workplace Relations Commission Adjudication Officer: Janet Hughes
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and Schedule 2 of the Protected Disclosures Act 2014following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).
Background:
The Complainant was a care worker with the Respondent from 5th February 2018 to 21st November 2018 when she resigned. It is her complaint that she made a protected disclosure in late September 2018 and that the treatment of her which followed was such that she was left with no option but to resign from the employment on 21st November 2018. She has submitted complaints of penalisation under the Protected Disclosures Act 2014 and one of constructive dismissal under the Unfair Dismissals Act of 1977 as amended. This decision is to be read in conjunction with ADJ-00019792 as the detriment claimed to have followed on from making a protected disclosure is one of unfair(constructive) dismissal which is addressed under ADJ-00019792. |
Summary of Complainant’s Case:
The summary of the Complainants Case is set out in ADJ-00019792. |
Summary of Respondent’s Case:
The summary of the Respondents Case is set out in ADJ-00019792. |
Findings and Conclusions:
In this case the Complainant’s complaint is that she was subjected to penalisation by the Respondent for having made a protected disclosure. During the hearing to investigate the complaint, the Complainant confirmed that the form of penalisation complained of, is that she had been unfairly (constructively) dismissed for having made a protected disclosure and that this state of affairs followed from the treatment/s of her by the Respondent after September 30th, 2018. The Complainant referred a complaint to the WRC under the Unfair Dismissals Acts 1977-2016 which was grounded on the same facts as those giving rise to the complaint under the Protected Disclosures Act,2014. A decision on that complaint is contained in ADJ-19792. In that decision I found that the Complainant was constructively dismissed for having made a protected disclosure to which the complaint under the Protected Disclosures Act also relates. In these circumstances, as a matter of law, she cannot obtain redress for penalisation, by way of constructive dismissal, under the Protected Disclosures Act 2014(the Act of 2014). Section 12(1) of the Act of 2014 prohibits penalisation of an employee for having made a protected disclosure. However, subsection (2) of that section provides as follows: ‘Subsection (1) does not apply to the dismissal of an employee to whom section 6(2)(ba) of the Unfair Dismissals Act 1977,applies.’ 11.(1) The Unfair Dismissals Act 1977 is amended- (a) in section 1 by inserting the following definitions: “ ‘protected disclosure’ has the meaning given by the Protected Disclosures Act 2014” ‘relevant wrongdoing’ has the meaning given by the Protected Disclosures Act 2014”; (b) in section 6 by inserting the following paragraph after paragraph (b) of subsection (2): “(ba) the employee having made a protected disclosure” The combined effect of the above amendment to the Unfair Dismissals Acts and Section 12(2) of the Act of 2014, is that where a complaint relates to a claim of penalisation for having made a protected disclosure, and where the detriment claimed is one of unfair dismissal, the facts of the case and any applicable redress fall to be considered solely under the provisions of the Unfair Dismissals Acts. Consideration of a claim for any separate remedy under Schedule 2 of the Protected Disclosures Act does not arise in this case and it follows that the complaint is not well founded under the terms of Section 12(1) of the Protected Disclosures Act. For the avoidance of doubt the term ‘not well founded’ should not be interpreted to mean that there was no protected disclosure or no detriment, merely that it is by application of the Unfair Dismissals Act that these complaints are to be decided as they relate to the claim, a detriment of unfair(constructive) dismissal. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
The Protected Disclosures Act 2014 requires that I make a decision in relation to the complaint under the redress provisions of Section 12 of Schedule 2 of that Act.
The complaint for the application of Section 12 of Schedule 2 of the Protected Disclosures Act 2014 brought by the Complainant is not well founded. |
Dated: 25/06/2020
Workplace Relations Commission Adjudication Officer: Janet Hughes
Key Words:
Protected Disclosure-Constructive Dismissal |