Complainant

Respondent

Anonymised Parties

A Placement Support Worker

A Care Provider

Representatives

Mr. Lars Asmussen, B.L., instructed by Sean Ormonde & Co. Solicitors

 M.M. Halley & Son Solicitors

Act

Complaint Reference No.

Date of Receipt

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

CA-00024996-001

14/01/2019

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

CA-00024996-002

14/01/2019

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

CA-00024996-003

14/01/2019

The Complainant claims that she was unfairly dismissed by the Respondent by way of constructive dismissal, penalised by the Respondent for having made a protective disclosure and penalised for making a complaint under the Safety, Health and Welfare at Work Act.

The Respondent denies all allegations.

The Complainant commenced permanent employment as a placement support worker on 6 July 2014. Her role and responsibilities included offering placement support to foster carers and families. In September 2017 she returned to work following a period of maternity leave and it was agreed that she worked 2 days per week (14 hours). Her gross annual salary was €16,016.

The Complainant said that following her return to work, there was a HIQA inspection. The Respondent undertook to assign a Quality Control Manager to work with colleagues to review practice on the properly monitoring and management of complaints, concerns and allegations in the foster care environment. This was to be completed and reported on by 9 March 2018. The Complainant said that she had a meeting with her Supervisor, Dr. A, on 27 April 2018 where she raised concerns from other staff and foster care families on the level of support being provided for them by the Respondent.

The Complainant in listing the concerns relayed to her suggested that these would have a huge impact on the service users and suggested that the Respondent was cutting corners. The Complainant said that Dr. A mentioned that another person had raised similar concerns and independent reviews on practice would be conducted, but this never happened. The Complainant maintains that instead she was ultimately penalised for making known these concerns and she maintains that these amounted to a protected disclosure under the Protected Disclosure Act 2014 and under the Safety, Health and Welfare at Work Act, 2005.

The Complainant claims that throughout 2018 team meetings were held and discussions had in relation to supports available. The Complainant claims that no issues were ever raised about her work or conduct, and she was led to believe she was a highly trusted and valued member of the team. In October 2018 the Complainant said that a meeting was held, which she was not present at, where it was alleged that certain foster parents made allegations about her “lack of openness” and “bitching”. She said that there was a claim that she asked the foster families to call the Respondent and request more time with her, to get more hours, and another claim where it was said that a therapy session was used to discuss the Complainant’s own wedding plans.

The Complainant said that the purported accusers were never disclosed to her. The Complainant said that she totally denied the claims made against her. A copy of the investigation report was submitted in evidence.

The Complainant claims that the report is false, in particular where it states that “all carers feel she is of no benefit to them or the Respondent… she weakens their morale and confidence in the organisation”. She said that she is still on good terms with a number of the couples she worked with. She claims that Mr. B, team leader, told lies about her to the foster carers. She said that the Respondent was attempting to manufacture a case against her to penalise her having raised complaints and protected disclosures.

The Complainant claims that she was asked to attend a meeting on 19 October 2018 with Mr. B and Ms. C, office manager, where she was told about the complaints made by foster carers. She said she was told that these complaints had come from different sources and she was suspended with pay until they were investigated. She was not told any information about the investigation and when she asked about her losing her job they said ‘maybe’. The Complainant said she was contacted by Ms. C about training on 22 October 2018, but she could not go as she was not to have contact with other members of staff.

The Complainant points to meetings that “allegedly” were held with a foster carers where her behaviour was discussed and reference was made to a letter received by the Respondent which the Complainant had not seen previously and was not disclosed in a data access request, which purports to her speaking negatively about other colleagues and other foster parents.

The Complainant claims that the Respondent was informed that one foster carer stated that she wished to retract what she said and did not want the Complainant to get into trouble but notwithstanding this, the Respondent still proceeded with the investigation.

On 25 October 2018 she said that she received a text to attend two meetings the following day from Ms. C. She sought clarification on those meetings and heard that one was to hear and respond to the allegations made against her and the second was to hear the outcome of the investigation.

It was agreed that the first meeting was to be held over the phone. She said that she had asked for a copy of the complaints but was not given a copy, instead Mr. B read them out over the phone. She was shocked as the very issues that she complained about were being raised, word for word, against her. The Complainant said that the Respondent finalised its report and recommended that disciplinary procedures should be followed. It also recommended that should she remain with the Respondent that “she is not returned to frontline services until such time as she regains the trust of the company with regard to her practice.” The Complainant said that no evidence was ever proffered to her about the claims made, no texts or notes of the allegations ever given to her. The Complainant said that she was not furnished with a copy of the investigation report. The person(s) making the complaints were never made known to her. The Complainant said the investigation report includes a recommendation of a severe disciplinary sanction, when an investigation report is intended to be not disciplinary in nature. The Complainant claims that all of this was done in an attempt to punish her for having made a protective disclosure.

The Complainant attended a meeting on 26 October where she was informed that there were reasons why the foster carers were not named but there were complaints coming from a variety of sources and the complaints were upheld. She was informed that the foster carers no longer wanted to work with her and the only way she could work with other foster carers was under close supervision. She was told her hours were being reduced from two days to one and she would work from the office and would undergo training on boundaries and professional conduct. She was told that the situation would be reviewed in three months’ time. The Complainant said at that point she informed the Respondent that she was certified unfit to work due to stress.

The Complainant said that the Respondent issued her with the most severe sanction short of dismissal. The Complainant said that one of the investigators said that she “cannot be trusted with children or foster carers”. She claims that she met with Ms. C on 5 November and she asked about her new role but there was no information on her new role. After which the Complainant wrote to the Respondent and resigned. She said that the Respondent made no attempt what so ever to persuade her to change her mind.

Legal Submissions

The Complainant said that Section 5 of the Protected Disclosures Act 2014 sets out the provisions for what a protected disclosure means. She mentioned that the motivation for making such a disclosure is irrelevant. The Complainant said that she made a protected disclosure at her supervision meeting on 27 April 2018 regarding a variety of issues inter alia regarding the management style, capabilities of the manager and including how staff cuts were having an impact on the frontline staff and the foster families. She said that this comes within the definition of “wrongdoing” in the 2014 Act.

She said Section 5(8) of the Act states such matter is a presumed protected disclosure and the burden of proof is for the Respondent to prove otherwise. Section 11 of the Act amends the Unfair Dismissal Act to protect against dismissal accordingly.

The Complainant refers to the decision in Dougan & Clark v Lifeline Ambulances Ltd, which looked at the temporal proximity between making the complaint and the dismissal, in that case 2.5 months. The Complainant said in her case she was subjected to a series of ‘events’, such as, being subjected to sham allegations; unfair imposition of a disciplinary penalty; unfair disciplinary process; reduction in her hours, resulting in a reduction to her salary and removal of frontline responsibility.

The Complainant maintains that she made a complaint about the health and welfare at work of both residents and staff and that amounts to a complaint under the act and that she was subsequently penalised under Section 27 of the Act.

The Complainant maintains that she was constructively dismissed by reason of the unreasonable treatment that she suffered at the hands of the Respondent. That she had no choice but to leave.

The Respondent is a foster care provider and employed the Complainant as a placement support worker from 6 July 2014 until she resigned on 5 November 2018. The Respondent said that lists of complaints presented by the Complainant in her evidence and the meeting she claims she had with Dr. A to make her protected disclosure is false and did not happen.

The Respondent said that it is normal when a supervisor meeting takes place for the person being supervised would prepare a report of the meeting, which is signed off by the Supervisor. There is no report to support that a meeting took place. The Respondent said that allegations in relation to “manager styles and capabilities” were never raised with it. There was no report of any improper conduct or anything of the sort. The Respondent pointed to a prior HIQA report which highlighted concerns where the Respondent has misplaced, and lost information and its need to improve on managing and storing information regarding foster carers. This was known by all the staff working there, including the Complainant and it was not something that the Complainant brought to its attention ever. The Respondent pointed to minutes of a planning day 30 January 2018, highlighting same. The Respondent said the meeting where the Complainant claims she made the disclosures, 27 April 2018, did not happen. The Respondent said that the alleged protected disclosures she claims she made were not made to it. The Respondent said, in reviewing the Complainant’s evidence it questioned the alleged matters raised by the Complainant in her submission, as dubious, and if it would even qualify as a protected disclosure under the 2014 Act at all.

The Respondent states that a staff meeting was held on 2 May with the team and none of the issues that the Complainant now claims to be of importance and amount to protected disclosures were ever raised. The Respondent said that the supervisors were doing their work and reporting the daily issues as they are expected to do. The Respondent said the Complainant raised nothing then.

The Respondent presented Dr. A to give evidence at the hearing and she was generally happy with the Complainant’s work until it received a number of complaints about the Complainant from a number of different sources. These complaints were of a personality nature, where it was reported that the Complainant was complaining about the organisation and other families and she was disclosing personal information about her upcoming wedding. The complaints suggest were of the nature that the support visit the Complainant was supposed to be giving to the clients were now largely about herself and were “bitchy” in nature and spoke about others in a derogatory manner.

The Respondent said in early October 2018 having spoken to a number of foster carers, the team leader Mr. B was asked to look after the investigation on the issues raised against the Complainant. The Respondent said that he spoke with the foster carers. Where the issues were addressed but the names of the parties that raised the issue were not released. The Respondent said that it is not uncommon not to identify the complaint’s in matters relation to child protection cases. The Respondent said that Mr. B interviewed the people individually and one sent in information by email. He met with the Complainant on 19 October 2018. The Complainant was suspended with full pay until the investigation was completed. The Respondent said having understood that the Complainant had disclosed information to one family regarding another that it checked its options with its HR advisors including the possibility of dismissal.

An outcome meeting was held with the Complainant on 26 October 2018 and it explained the reason as to why it had not named the foster carers and she accepted that at the time. The Respondent said that it set out that it had concerns about her professional conduct and boundaries. The Respondent said that it put a plan in place to allow her to rebuild trust and confidence. The Respondent said there was no disciplinary meeting. The plan was to work within the office on reduced hours, because the carers she had worked with did not want her back, and the Respondent would have to pay another staff member to cover her hours. The plan was to be reviewed in three months’ time. The Respondent said that the Complainant was happy to move on, but she presented an unfit to work cert. The Respondent said that in hindsight it could have done better in how it conducted the investigation, and this includes how she was invited to the meetings and the non-issuing of the final report at the time. The Respondent said that there was no disciplinary meeting or sanction. The Respondent said that the Complainant left its workplace after the investigation and never appealed the plan. The plan as was accepted by the Complainant at the time was to build confidence with it again.

The Respondent said that the Complainant had access to Ms. C and if she did not like the arrangement it would have organised for an external investigation. However, she was on sick leave and after which she just left. The Respondent said that she got married a few weeks later and after this filed her complaint with the Workplace Relations Commission in March 2018.

CA-00024996-001 - Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

The Relevant Law

Section 1 of the Unfair dismissal act defines “dismissal”, in relation to an employee, as

“(b) the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer.”

The term “constructive dismissal” is not specifically provided for in the Unfair Dismissals Act 1977. However, it is a term commonly understood to refer to the part of the definition, Section 1(b) of the Act which provides that:

In order to rely upon the provisions of Section 1(b) the Complainant must establish, in the first instance, that there was a termination of her contract of employment. It was not in dispute that the Complainant resigned from her position as of 5 November 2018.

The Complainant is claiming that she was constructively dismissed from her position as placement support worker with the Respondent.

As the Complainant is claiming constructive dismissal, the onus of proof rests with her to establish facts to prove that the actions of the Respondent were such to justify terminating her employment.

The appropriate legal test in respect of constructive dismissal was provided by the UK Court of Appeal in the case of Western Excavating (ECC) Ltd -v- Sharp [1978] 1 All E.R. 713. It comprises of two tests, often referred to as the ‘contract test’ and the ‘reasonableness test’. It summarised the ‘contract test’ as follows: “If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any other performance.” The reasonableness test assesses the conduct of the employer and whether it “…conducts himself or his affairs so unreasonably that the employee cannot fairly be expected to put up with it any longer, if so, the employee is justified in leaving.”

According to the Supreme Court in Berber -v- Dunnes Stores [2009] E.L.R. 61, it said that “The conduct of the employer complained of must be unreasonable and without proper cause and its effect on the employee must be judged objectively, reasonably and sensibly in order to determine if it is such that the employee cannot be expected to put up with it.”

The question which I must decide in the present case is whether, because of the conduct of the Respondent, the Complainant was entitled to terminate her contract of employment.

The central plank of this claim rests with events around 27 April 2018. The Complainant claims that she had a supervision meeting with Dr. A, managing director of the Respondent, at his home. She claims that at this meeting she made a number of protected disclosures for the purpose of the Protected Disclosures Act, 2014. The Complainant claims that following these disclosures she suffered intensely at the hands of the Respondent. She claims that the Respondent fabricated false complaints from foster carers against her. That the Respondent designed and plotted a mock investigation and disciplinary process. Finally, she claims that the Respondent penalised her by changing her working relationship with the organisation completely, reducing her working week from two days to one and this was the next worst sanction outside of dismissal.

The Respondent disputes the claim of constructive dismissal. The Respondent disputes that the Complainant ever made any protected disclosures to Dr. A or anyone else. The Respondent said that the alleged meeting between the Complainant and Dr. A on 27 April never happened. The Respondent said that it had aired many of the alleged issues raised by the Complainant with staff previously. The Respondent said that it received a number of complaints from foster carers about the Complainant and her professional conduct and it was obliged to address them. The Respondent said that following an investigation that it admits could have been done better, it found that the Complainant could remain in its employment but that there would be significant changes to her work arrangements, she would need to establish its trust and there would be a three-month review.

I note that the Complainant went out on certified sick leave and never returned to her workplace. She resigned on 5 November 2018 and lodged her complaints for unfair dismissal, and penalisation under the Protected Disclosures Act 2014 and the Safety, Health & Welfare at Work Act, 2005 on the 14 January 2019.

It is well established that in advancing a claim for constructive dismissal an employee is required to show that he or she had no option in the circumstances of their employment other than to terminate his or her employment. The notion places a very high burden of proof on an employee to demonstrate that he or she acted reasonably and had exhausted all internal procedures formally or otherwise in an attempt to resolve their grievance with their employers.

The Labour Court has held in the case of Ranchin -v- Allianz Worldwide Care S.A. [UDD1636] that: “In constructive dismissal cases, the Court must examine the conduct of both parties. In normal circumstances a complainant who seeks to invoke the reasonableness test in furtherance of such a claim must also act reasonably by providing the employer with an opportunity to address whatever grievance they may have. They must demonstrate that they have pursued their grievance through the procedures laid down in the contract of employment before taking the step to resign: Conway v Ulster Bank Limited UDA474/1981”.

The Employment Appeals Tribunal held in the case of Travers v MBNA Ireland Ltd [UD720/2006] that: “We find that the claimant did not exhaust the grievance procedure made available to him by the respondent and this proves fatal to the claimant’s case…In constructive dismissal cases it is incumbent for a claimant to utilise all internal remedies made available to him unless good cause can be shown that the remedy or appeal process is unfair”.

In accordance with the established principles in constructive dismissal cases, I am satisfied that there was an obligation on the Complainant to activate the internal procedures before taking the step to resign from her employment.

The Complainant has made a number of serious allegations against the Respondent. I am satisfied that they need to be carefully addressed in sequence in order to determine the merits of her claim for constructive dismissal.

Both the Complainant and the Respondent pretty much highlight the same general issues when it comes to alleged protected disclosures and the alleged complaints received by the foster carers. The Complainant claims that she raised 10 matters with Dr. A on 27 April under fairly general headings rather than specify detailed individual examples.

I note that some of these identical issues were aired at a team meeting that was held by the Respondent on 30 January 2018, some four months earlier, following feedback from a HIQA report following an inspection.

I understand that the Complainant claims that some of the alleged carers complaints were fabricated by the Respondent, and were ‘word for word’ the same complaints she raised with Dr. A at the supervisor meeting she had on 27 April. I have received a photocopy of the Complainant’s diary for 27 April with a handwritten list of issues she claims she went through with Dr. A.

Whereas Dr. A said there was no meeting, she also had no record of a meeting held with the Complainant. Also Dr. A claims that it is usual that after a meeting that the supervisor signs off on the supervisee’s report of the meeting. It was established by both the Complainant and the Respondent that that report does not exist.

On the balance of probabilities, I prefer the Respondent’s evidence on this matter. I therefore find in favour of the Respondent in what I have considered to be the central plank of the Complainant’s case under the three complaints before the WRC.

Therefore, since I find that no protected disclosures were made on 27 April 2018, I find that the foster carers’ complaints received about the Complainant could not have been fabricated as a reaction by the Respondent and an act of penalisation against the Complainant. I find therefore on the balance of probabilities that the foster carers’ complaints were factual and were received in good faith and an investigation into the matters and the disciplinary process were also valid in the circumstance.

I have noted both the Complainant’s and Respondent’s view of the process adapted to investigate the allegations made against the Complainant. Having considered the methodology, I would determine that it was far from perfect. I note the process was truncated and there was much crossover between personnel and stages. It lacked cohesion. However, I have considered the evidence of the interaction with the Complainant, and in particular the final meeting on 26 October 2018, which has not been critically challenged as having occurred or as an accurate account of events. Since there is a substantial difference of opinions of the events at the time, I am adding weight to the accounts in these documents of what on the balance of probabilities happened during the course of the investigation.

The Complainant has placed much reliance on the content of the internal interactions between the various people within the Respondent and its HR advisor. I determine that the most interesting conclusion from the documents produced and opened to me in the hearing is the Complainant’s tacit acceptance of the case built against her, notwithstanding that the complaints appear to be the very nature of the complaint she said she raised with Dr. A, some months previous. There is no   mention of that, and she appears from the written evidence to accept the final decision by the Respondent on a new plan to proceed in her employment and to have it reviewed in three months.

I note that the Complainant met with Ms. C while she was out on sick leave. I do not get a sense from this meeting that the Complainant was left with a complete unrealistic situation that she had no other option but to resign. I have read the final resignation letter of 5 November 2018, it is short but thankful for the opportunity for development while working with the Respondent. Again, I do not get a sense that this demonstrates a situation where the Complainant is forced out without any choice.

Based on the evidence adduced, I do not accept that the Complainant sought a resolution via the formal route, that she is obliged to follow.

In the circumstances, I find that the Complainant has not established that she gave the Respondent an opportunity to address concerns she might have had before taking the decision to resign. Accordingly, I find that the Complainant was not constructively dismissed from her employment.

CA-00024996-002 - Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005

The Relevant Law

The following sections of Section 27 of the Safety, Health and Welfare at Work Act, 2005 are particularly relevant:

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.

27 (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 threat 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”.

 and

27 (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”.

Based on the evidence, I am satisfied that, in the within case, the specific claim of penalisation is based on the Complainant’s claim that she made representations to Dr. A at a meeting on 27 April   regarding a safety, health and welfare at work matter.

The Labour Court in the case of Patrick Kelly t/a Western Installation v Girdzius [HSD081], set out the burden of proof required in such circumstances as follows: “It is clear from a plain reading of subsection (3a) of this section that penalisation is rendered unlawful under the Act when it is perpetrated on an employee for having performed or committed one or more of the acts referred to in the succeeding paragraphs of this section. Thus it is perfectly plain that in order to succeed in the cause of action grounded on the Section a claimant must establish not only that he/she suffered a detriment of the type referred to at (1) but that the detriment was imposed because of, or was in retaliation for, the employee having acted in a manner referred to at subsection (3a).”

The standard pertaining to the burden of proof, as set out above, is clear that a Complainant is, therefore, required to establish that the detriments complained of were imposed “because of or in retaliation for” her having raised concerns in relation to the health and safety matters. This gives rise to what is commonly referred to as the “but for” test. Therefore, for the Complainant in the within case to be successful in her claim, she is required to establish the alleged detriments of penalisation.

I refer to the findings above under CA-00024996-001 - Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977, where I have found that the Complainant did not make or present Dr. A with a number of issues that could be determined to fall under the category provided for under Section 28 of the Safety, Health & Welfare at Work Act, 2005. Accordingly, as a consequence, I find that the Complainant was not penalised as provided for under Section 27 of the Safety, Health & Welfare at Work Act, 2005.

CA-00024996-003 - Complaint seeking adjudication by the Workplace Relations Commission under Schedule 2 of the Protected Disclosures Act, 2014

The Relevant Law

Section 5 of the Protected Disclosures Act states,

5. (1) For the purposes of this Act “protected disclosure” means, subject to subsections (6) and (7A) 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.

I note with interest the determination in Aidan & Henrietta Partnership v Anna Monaghan PDD162, where the Labour Court held that, “A grievance is a matter specific to a worker whereas a protected disclosure is where a worker had information about a relevant wrongdoing”…“The Court must first establish that a protected disclosure has been made before it can examine whether a penalisation within the meaning of the Act has occurred”.

Accordingly, the standards pertaining to the burden of proof rests with the Complainant to establish.

I refer to the findings above under CA-00024996-001 - Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977, where I have found that the Complainant did not make or present Dr. A with a number of issues that could be determined to fall under the category provided for under Section 5 of the Protected Disclosures Act 2015. Accordingly, as a consequence, I find that as the Complainant did not make or present issues that can be described as protected disclosures, she therefore cannot be deemed to be penalised as provided for under Section 12. 

CA-00024996-001 - Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

The complaint is not well founded.

CA-00024996-002 - Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005

The complaint is not well founded.

CA-00024996-003 - Complaint seeking adjudication by the Workplace Relations Commission under Schedule 2 of the Protected Disclosures Act, 2014

The complaint is not well founded.

Unfair Dismissals - Safety, Health & Welfare at Work - Protected Disclosures - not well founded

Complainant

Respondent

Anonymised Parties

A Placement Support Worker

A Care Provider

Representatives

Mr. Lars Asmussen, B.L., instructed by Sean Ormonde & Co. Solicitors

M.M. Halley & Son Solicitors

Act

Complaint Reference No.

Date of Receipt

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

CA-00024996-001

14/01/2019

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

CA-00024996-002

14/01/2019

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

CA-00024996-003

14/01/2019

The Complainant claims that she was unfairly dismissed by the Respondent by way of constructive dismissal, penalised by the Respondent for having made a protective disclosure and penalised for making a complaint under the Safety, Health and Welfare at Work Act.

The Respondent denies all allegations.

The Complainant commenced permanent employment as a placement support worker on 6 July 2014. Her role and responsibilities included offering placement support to foster carers and families. In September 2017 she returned to work following a period of maternity leave and it was agreed that she worked 2 days per week (14 hours). Her gross annual salary was €16,016.

The Complainant said that following her return to work, there was a HIQA inspection. The Respondent undertook to assign a Quality Control Manager to work with colleagues to review practice on the properly monitoring and management of complaints, concerns and allegations in the foster care environment. This was to be completed and reported on by 9 March 2018. The Complainant said that she had a meeting with her Supervisor, Dr. A, on 27 April 2018 where she raised concerns from other staff and foster care families on the level of support being provided for them by the Respondent.

The Complainant in listing the concerns relayed to her suggested that these would have a huge impact on the service users and suggested that the Respondent was cutting corners. The Complainant said that Dr. A mentioned that another person had raised similar concerns and independent reviews on practice would be conducted, but this never happened. The Complainant maintains that instead she was ultimately penalised for making known these concerns and she maintains that these amounted to a protected disclosure under the Protected Disclosure Act 2014 and under the Safety, Health and Welfare at Work Act, 2005.

The Complainant claims that throughout 2018 team meetings were held and discussions had in relation to supports available. The Complainant claims that no issues were ever raised about her work or conduct, and she was led to believe she was a highly trusted and valued member of the team. In October 2018 the Complainant said that a meeting was held, which she was not present at, where it was alleged that certain foster parents made allegations about her “lack of openness” and “bitching”. She said that there was a claim that she asked the foster families to call the Respondent and request more time with her, to get more hours, and another claim where it was said that a therapy session was used to discuss the Complainant’s own wedding plans.

The Complainant said that the purported accusers were never disclosed to her. The Complainant said that she totally denied the claims made against her. A copy of the investigation report was submitted in evidence.

The Complainant claims that the report is false, in particular where it states that “all carers feel she is of no benefit to them or the Respondent… she weakens their morale and confidence in the organisation”. She said that she is still on good terms with a number of the couples she worked with. She claims that Mr. B, team leader, told lies about her to the foster carers. She said that the Respondent was attempting to manufacture a case against her to penalise her having raised complaints and protected disclosures.

The Complainant claims that she was asked to attend a meeting on 19 October 2018 with Mr. B and Ms. C, office manager, where she was told about the complaints made by foster carers. She said she was told that these complaints had come from different sources and she was suspended with pay until they were investigated. She was not told any information about the investigation and when she asked about her losing her job they said ‘maybe’. The Complainant said she was contacted by Ms. C about training on 22 October 2018, but she could not go as she was not to have contact with other members of staff.

The Complainant points to meetings that “allegedly” were held with a foster carers where her behaviour was discussed and reference was made to a letter received by the Respondent which the Complainant had not seen previously and was not disclosed in a data access request, which purports to her speaking negatively about other colleagues and other foster parents.

The Complainant claims that the Respondent was informed that one foster carer stated that she wished to retract what she said and did not want the Complainant to get into trouble but notwithstanding this, the Respondent still proceeded with the investigation.

On 25 October 2018 she said that she received a text to attend two meetings the following day from Ms. C. She sought clarification on those meetings and heard that one was to hear and respond to the allegations made against her and the second was to hear the outcome of the investigation.

It was agreed that the first meeting was to be held over the phone. She said that she had asked for a copy of the complaints but was not given a copy, instead Mr. B read them out over the phone. She was shocked as the very issues that she complained about were being raised, word for word, against her. The Complainant said that the Respondent finalised its report and recommended that disciplinary procedures should be followed. It also recommended that should she remain with the Respondent that “she is not returned to frontline services until such time as she regains the trust of the company with regard to her practice.” The Complainant said that no evidence was ever proffered to her about the claims made, no texts or notes of the allegations ever given to her. The Complainant said that she was not furnished with a copy of the investigation report. The person(s) making the complaints were never made known to her. The Complainant said the investigation report includes a recommendation of a severe disciplinary sanction, when an investigation report is intended to be not disciplinary in nature. The Complainant claims that all of this was done in an attempt to punish her for having made a protective disclosure.

The Complainant attended a meeting on 26 October where she was informed that there were reasons why the foster carers were not named but there were complaints coming from a variety of sources and the complaints were upheld. She was informed that the foster carers no longer wanted to work with her and the only way she could work with other foster carers was under close supervision. She was told her hours were being reduced from two days to one and she would work from the office and would undergo training on boundaries and professional conduct. She was told that the situation would be reviewed in three months’ time. The Complainant said at that point she informed the Respondent that she was certified unfit to work due to stress.

The Complainant said that the Respondent issued her with the most severe sanction short of dismissal. The Complainant said that one of the investigators said that she “cannot be trusted with children or foster carers”. She claims that she met with Ms. C on 5 November and she asked about her new role but there was no information on her new role. After which the Complainant wrote to the Respondent and resigned. She said that the Respondent made no attempt what so ever to persuade her to change her mind.

Legal Submissions

The Complainant said that Section 5 of the Protected Disclosures Act 2014 sets out the provisions for what a protected disclosure means. She mentioned that the motivation for making such a disclosure is irrelevant. The Complainant said that she made a protected disclosure at her supervision meeting on 27 April 2018 regarding a variety of issues inter alia regarding the management style, capabilities of the manager and including how staff cuts were having an impact on the frontline staff and the foster families. She said that this comes within the definition of “wrongdoing” in the 2014 Act.

She said Section 5(8) of the Act states such matter is a presumed protected disclosure and the burden of proof is for the Respondent to prove otherwise. Section 11 of the Act amends the Unfair Dismissal Act to protect against dismissal accordingly.

The Complainant refers to the decision in Dougan & Clark v Lifeline Ambulances Ltd, which looked at the temporal proximity between making the complaint and the dismissal, in that case 2.5 months. The Complainant said in her case she was subjected to a series of ‘events’, such as, being subjected to sham allegations; unfair imposition of a disciplinary penalty; unfair disciplinary process; reduction in her hours, resulting in a reduction to her salary and removal of frontline responsibility.

The Complainant maintains that she made a complaint about the health and welfare at work of both residents and staff and that amounts to a complaint under the act and that she was subsequently penalised under Section 27 of the Act.

The Complainant maintains that she was constructively dismissed by reason of the unreasonable treatment that she suffered at the hands of the Respondent. That she had no choice but to leave.

The Respondent is a foster care provider and employed the Complainant as a placement support worker from 6 July 2014 until she resigned on 5 November 2018. The Respondent said that lists of complaints presented by the Complainant in her evidence and the meeting she claims she had with Dr. A to make her protected disclosure is false and did not happen.

The Respondent said that it is normal when a supervisor meeting takes place for the person being supervised would prepare a report of the meeting, which is signed off by the Supervisor. There is no report to support that a meeting took place. The Respondent said that allegations in relation to “manager styles and capabilities” were never raised with it. There was no report of any improper conduct or anything of the sort. The Respondent pointed to a prior HIQA report which highlighted concerns where the Respondent has misplaced, and lost information and its need to improve on managing and storing information regarding foster carers. This was known by all the staff working there, including the Complainant and it was not something that the Complainant brought to its attention ever. The Respondent pointed to minutes of a planning day 30 January 2018, highlighting same. The Respondent said the meeting where the Complainant claims she made the disclosures, 27 April 2018, did not happen. The Respondent said that the alleged protected disclosures she claims she made were not made to it. The Respondent said, in reviewing the Complainant’s evidence it questioned the alleged matters raised by the Complainant in her submission, as dubious, and if it would even qualify as a protected disclosure under the 2014 Act at all.

The Respondent states that a staff meeting was held on 2 May with the team and none of the issues that the Complainant now claims to be of importance and amount to protected disclosures were ever raised. The Respondent said that the supervisors were doing their work and reporting the daily issues as they are expected to do. The Respondent said the Complainant raised nothing then.

The Respondent presented Dr. A to give evidence at the hearing and she was generally happy with the Complainant’s work until it received a number of complaints about the Complainant from a number of different sources. These complaints were of a personality nature, where it was reported that the Complainant was complaining about the organisation and other families and she was disclosing personal information about her upcoming wedding. The complaints suggest were of the nature that the support visit the Complainant was supposed to be giving to the clients were now largely about herself and were “bitchy” in nature and spoke about others in a derogatory manner.

The Respondent said in early October 2018 having spoken to a number of foster carers, the team leader Mr. B was asked to look after the investigation on the issues raised against the Complainant. The Respondent said that he spoke with the foster carers. Where the issues were addressed but the names of the parties that raised the issue were not released. The Respondent said that it is not uncommon not to identify the complaint’s in matters relation to child protection cases. The Respondent said that Mr. B interviewed the people individually and one sent in information by email. He met with the Complainant on 19 October 2018. The Complainant was suspended with full pay until the investigation was completed. The Respondent said having understood that the Complainant had disclosed information to one family regarding another that it checked its options with its HR advisors including the possibility of dismissal.

An outcome meeting was held with the Complainant on 26 October 2018 and it explained the reason as to why it had not named the foster carers and she accepted that at the time. The Respondent said that it set out that it had concerns about her professional conduct and boundaries. The Respondent said that it put a plan in place to allow her to rebuild trust and confidence. The Respondent said there was no disciplinary meeting. The plan was to work within the office on reduced hours, because the carers she had worked with did not want her back, and the Respondent would have to pay another staff member to cover her hours. The plan was to be reviewed in three months’ time. The Respondent said that the Complainant was happy to move on, but she presented an unfit to work cert. The Respondent said that in hindsight it could have done better in how it conducted the investigation, and this includes how she was invited to the meetings and the non-issuing of the final report at the time. The Respondent said that there was no disciplinary meeting or sanction. The Respondent said that the Complainant left its workplace after the investigation and never appealed the plan. The plan as was accepted by the Complainant at the time was to build confidence with it again.

The Respondent said that the Complainant had access to Ms. C and if she did not like the arrangement it would have organised for an external investigation. However, she was on sick leave and after which she just left. The Respondent said that she got married a few weeks later and after this filed her complaint with the Workplace Relations Commission in March 2018.

CA-00024996-001 - Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

The Relevant Law

Section 1 of the Unfair dismissal act defines “dismissal”, in relation to an employee, as

“(b) the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer.”

The term “constructive dismissal” is not specifically provided for in the Unfair Dismissals Act 1977. However, it is a term commonly understood to refer to the part of the definition, Section 1(b) of the Act which provides that:

In order to rely upon the provisions of Section 1(b) the Complainant must establish, in the first instance, that there was a termination of her contract of employment. It was not in dispute that the Complainant resigned from her position as of 5 November 2018.

The Complainant is claiming that she was constructively dismissed from her position as placement support worker with the Respondent.

As the Complainant is claiming constructive dismissal, the onus of proof rests with her to establish facts to prove that the actions of the Respondent were such to justify terminating her employment.

The appropriate legal test in respect of constructive dismissal was provided by the UK Court of Appeal in the case of Western Excavating (ECC) Ltd -v- Sharp [1978] 1 All E.R. 713. It comprises of two tests, often referred to as the ‘contract test’ and the ‘reasonableness test’. It summarised the ‘contract test’ as follows: “If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any other performance.” The reasonableness test assesses the conduct of the employer and whether it “…conducts himself or his affairs so unreasonably that the employee cannot fairly be expected to put up with it any longer, if so, the employee is justified in leaving.”

According to the Supreme Court in Berber -v- Dunnes Stores [2009] E.L.R. 61, it said that “The conduct of the employer complained of must be unreasonable and without proper cause and its effect on the employee must be judged objectively, reasonably and sensibly in order to determine if it is such that the employee cannot be expected to put up with it.”

The question which I must decide in the present case is whether, because of the conduct of the Respondent, the Complainant was entitled to terminate her contract of employment.

The central plank of this claim rests with events around 27 April 2018. The Complainant claims that she had a supervision meeting with Dr. A, managing director of the Respondent, at his home. She claims that at this meeting she made a number of protected disclosures for the purpose of the Protected Disclosures Act, 2014. The Complainant claims that following these disclosures she suffered intensely at the hands of the Respondent. She claims that the Respondent fabricated false complaints from foster carers against her. That the Respondent designed and plotted a mock investigation and disciplinary process. Finally, she claims that the Respondent penalised her by changing her working relationship with the organisation completely, reducing her working week from two days to one and this was the next worst sanction outside of dismissal.

The Respondent disputes the claim of constructive dismissal. The Respondent disputes that the Complainant ever made any protected disclosures to Dr. A or anyone else. The Respondent said that the alleged meeting between the Complainant and Dr. A on 27 April never happened. The Respondent said that it had aired many of the alleged issues raised by the Complainant with staff previously. The Respondent said that it received a number of complaints from foster carers about the Complainant and her professional conduct and it was obliged to address them. The Respondent said that following an investigation that it admits could have been done better, it found that the Complainant could remain in its employment but that there would be significant changes to her work arrangements, she would need to establish its trust and there would be a three-month review.

I note that the Complainant went out on certified sick leave and never returned to her workplace. She resigned on 5 November 2018 and lodged her complaints for unfair dismissal, and penalisation under the Protected Disclosures Act 2014 and the Safety, Health & Welfare at Work Act, 2005 on the 14 January 2019.

It is well established that in advancing a claim for constructive dismissal an employee is required to show that he or she had no option in the circumstances of their employment other than to terminate his or her employment. The notion places a very high burden of proof on an employee to demonstrate that he or she acted reasonably and had exhausted all internal procedures formally or otherwise in an attempt to resolve their grievance with their employers.

The Labour Court has held in the case of Ranchin -v- Allianz Worldwide Care S.A. [UDD1636] that: “In constructive dismissal cases, the Court must examine the conduct of both parties. In normal circumstances a complainant who seeks to invoke the reasonableness test in furtherance of such a claim must also act reasonably by providing the employer with an opportunity to address whatever grievance they may have. They must demonstrate that they have pursued their grievance through the procedures laid down in the contract of employment before taking the step to resign: Conway v Ulster Bank Limited UDA474/1981”.

The Employment Appeals Tribunal held in the case of Travers v MBNA Ireland Ltd [UD720/2006] that: “We find that the claimant did not exhaust the grievance procedure made available to him by the respondent and this proves fatal to the claimant’s case…In constructive dismissal cases it is incumbent for a claimant to utilise all internal remedies made available to him unless good cause can be shown that the remedy or appeal process is unfair”.

In accordance with the established principles in constructive dismissal cases, I am satisfied that there was an obligation on the Complainant to activate the internal procedures before taking the step to resign from her employment.

The Complainant has made a number of serious allegations against the Respondent. I am satisfied that they need to be carefully addressed in sequence in order to determine the merits of her claim for constructive dismissal.

Both the Complainant and the Respondent pretty much highlight the same general issues when it comes to alleged protected disclosures and the alleged complaints received by the foster carers. The Complainant claims that she raised 10 matters with Dr. A on 27 April under fairly general headings rather than specify detailed individual examples.

I note that some of these identical issues were aired at a team meeting that was held by the Respondent on 30 January 2018, some four months earlier, following feedback from a HIQA report following an inspection.

I understand that the Complainant claims that some of the alleged carers complaints were fabricated by the Respondent, and were ‘word for word’ the same complaints she raised with Dr. A at the supervisor meeting she had on 27 April. I have received a photocopy of the Complainant’s diary for 27 April with a handwritten list of issues she claims she went through with Dr. A.

Whereas Dr. A said there was no meeting, she also had no record of a meeting held with the Complainant. Also Dr. A claims that it is usual that after a meeting that the supervisor signs off on the supervisee’s report of the meeting. It was established by both the Complainant and the Respondent that that report does not exist.

On the balance of probabilities, I prefer the Respondent’s evidence on this matter. I therefore find in favour of the Respondent in what I have considered to be the central plank of the Complainant’s case under the three complaints before the WRC.

Therefore, since I find that no protected disclosures were made on 27 April 2018, I find that the foster carers’ complaints received about the Complainant could not have been fabricated as a reaction by the Respondent and an act of penalisation against the Complainant. I find therefore on the balance of probabilities that the foster carers’ complaints were factual and were received in good faith and an investigation into the matters and the disciplinary process were also valid in the circumstance.

I have noted both the Complainant’s and Respondent’s view of the process adapted to investigate the allegations made against the Complainant. Having considered the methodology, I would determine that it was far from perfect. I note the process was truncated and there was much crossover between personnel and stages. It lacked cohesion. However, I have considered the evidence of the interaction with the Complainant, and in particular the final meeting on 26 October 2018, which has not been critically challenged as having occurred or as an accurate account of events. Since there is a substantial difference of opinions of the events at the time, I am adding weight to the accounts in these documents of what on the balance of probabilities happened during the course of the investigation.

The Complainant has placed much reliance on the content of the internal interactions between the various people within the Respondent and its HR advisor. I determine that the most interesting conclusion from the documents produced and opened to me in the hearing is the Complainant’s tacit acceptance of the case built against her, notwithstanding that the complaints appear to be the very nature of the complaint she said she raised with Dr. A, some months previous. There is no  mention of that, and she appears from the written evidence to accept the final decision by the Respondent on a new plan to proceed in her employment and to have it reviewed in three months.

I note that the Complainant met with Ms. C while she was out on sick leave. I do not get a sense from this meeting that the Complainant was left with a complete unrealistic situation that she had no other option but to resign. I have read the final resignation letter of 5 November 2018, it is short but thankful for the opportunity for development while working with the Respondent. Again, I do not get a sense that this demonstrates a situation where the Complainant is forced out without any choice.

Based on the evidence adduced, I do not accept that the Complainant sought a resolution via the formal route, that she is obliged to follow.

In the circumstances, I find that the Complainant has not established that she gave the Respondent an opportunity to address concerns she might have had before taking the decision to resign. Accordingly, I find that the Complainant was not constructively dismissed from her employment.

CA-00024996-002 - Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005

The Relevant Law

The following sections of Section 27 of the Safety, Health and Welfare at Work Act, 2005 are particularly relevant:

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.

27 (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 threat 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”.

 and

27 (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”.

Based on the evidence, I am satisfied that, in the within case, the specific claim of penalisation is based on the Complainant’s claim that she made representations to Dr. A at a meeting on 27 April regarding a safety, health and welfare at work matter.

The Labour Court in the case of Patrick Kelly t/a Western Installation v Girdzius [HSD081], set out the burden of proof required in such circumstances as follows: “It is clear from a plain reading of subsection (3a) of this section that penalisation is rendered unlawful under the Act when it is perpetrated on an employee for having performed or committed one or more of the acts referred to in the succeeding paragraphs of this section. Thus it is perfectly plain that in order to succeed in the cause of action grounded on the Section a claimant must establish not only that he/she suffered a detriment of the type referred to at (1) but that the detriment was imposed because of, or was in retaliation for, the employee having acted in a manner referred to at subsection (3a).”

The standard pertaining to the burden of proof, as set out above, is clear that a Complainant is, therefore, required to establish that the detriments complained of were imposed “because of or in retaliation for” her having raised concerns in relation to the health and safety matters. This gives rise to what is commonly referred to as the “but for” test. Therefore, for the Complainant in the within case to be successful in her claim, she is required to establish the alleged detriments of penalisation.

I refer to the findings above under CA-00024996-001 - Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977, where I have found that the Complainant did not make or present Dr. A with a number of issues that could be determined to fall under the category provided for under Section 28 of the Safety, Health & Welfare at Work Act, 2005. Accordingly, as a consequence, I find that the Complainant was not penalised as provided for under Section 27 of the Safety, Health & Welfare at Work Act, 2005.

CA-00024996-003 - Complaint seeking adjudication by the Workplace Relations Commission under Schedule 2 of the Protected Disclosures Act, 2014

The Relevant Law

Section 5 of the Protected Disclosures Act states,

5. (1) For the purposes of this Act “protected disclosure” means, subject to subsections (6) and (7A) 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.

I note with interest the determination in Aidan & Henrietta Partnership v Anna Monaghan PDD162, where the Labour Court held that, “A grievance is a matter specific to a worker whereas a protected disclosure is where a worker had information about a relevant wrongdoing”…“The Court must first establish that a protected disclosure has been made before it can examine whether a penalisation within the meaning of the Act has occurred”.

Accordingly, the standards pertaining to the burden of proof rests with the Complainant to establish.

I refer to the findings above under CA-00024996-001 - Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977, where I have found that the Complainant did not make or present Dr. A with a number of issues that could be determined to fall under the category provided for under Section 5 of the Protected Disclosures Act 2015. Accordingly, as a consequence, I find that as the Complainant did not make or present issues that can be described as protected disclosures, she therefore cannot be deemed to be penalised as provided for under Section 12.

CA-00024996-001 - Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

The complaint is not well founded.

CA-00024996-002 - Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005

The complaint is not well founded.

CA-00024996-003 - Complaint seeking adjudication by the Workplace Relations Commission under Schedule 2 of the Protected Disclosures Act, 2014

The complaint is not well founded.

Unfair Dismissals - Safety, Health & Welfare at Work - Protected Disclosures - not well founded