Complainant

Respondent

Anonymised Parties

Care Worker

Care Home Provider

Representatives

Self

Sam Saarsteiner Clark Hill Solicitors

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-00025430-001

30/01/2019

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. There are complaints of penalisation under the Protected Disclosures Act 2014 with a detriment of constructive dismissal claimed under the Unfair Dismissals Act of 1977 as amended. As the provisions of the Unfair Dismissals Act were amended at Sect 6 (2)(ba) to include the making of a protected disclosure one of the grounds for a finding of unfair dismissal having regard to all the circumstances, the case of having made a protected disclosure and having suffered a detriment amounting to constructive dismissal are fully explored and decided in this Decision.

The Complainant’s position was set out in her submissions to the Workplace Relations Commission when making her complaint which, together with the information provided by her at the hearing, is summarised as follows:

She made an anonymous complaint to the HSE on 26/09/2018. The complaints comprised three issues confirmed to the PIC in a letter from the HSE to the Respondent on September 28th, 2018 : complaints of abuse, lack of staff, and lack of essential items.

On receipt of the report from the HSE, the Respondent conducted a survey questionnaire of all staff:

“There has been an allegation of abuse by a staff member to the HSE social worker about a male carer, the lack of supplies for the residents and a shortage f (sic) staff. As part of our screening and before we start a full investigation we need to ask you three questions. If you have any concerns then we will call you back for further investigations. This is just the initial screening.

1.      Have you any concerns about any male staff member being abusive to residents.

2.      Have you any concerns that there is not enough supplies available to residents.

3.      Have you any issues with staff shortages to the nursing home.”

The Complainant answered yes to all questions, the only employee to do so and the only one to answer that she believed there was abuse by a male carer. Up to that point she believes the Respondent did not know that it was she who had made the disclosure report to the HSE, but she believes that because she was the only one to answer yes to all three questions they then knew she was the whistle blower. After that she contends that Management and Staff treated her very differently.

She attended meetings with managers on 30 September,1 October. At one of these meetings she felt she was put under pressure to change her mind by a senior manager-Witness C.

At one of these meetings she named two employees who she believed abused residents. Subsequently she was put under stress by her fellow employees who appeared to know that she had made the complaint. She was approached by one of the other employees asking her about her complaint against him. She was prevented from speaking to this employee by one of the managers. Other employees removed her from Facebook and WhatsApp. She described other employees whispering about her. She spoke of her anxiety still when she sees any other former colleague outside of the employment.

She complained of being excluded from the handover by another named employee. Her work duties were changed, rostering her into the dining room each day; she referred to being followed while on duty and denied one to one contact with residents. The Complainant said she felt isolated and stressed and went out sick certified as workplace stress on 10th October and did not return to work. She described being ‘put under stress by my work colleagues who appeared to know I had made a protected disclosure and were whispering about me and following me around when I was taking care of residents and one colleague challenged me as to why I had made a complaint.’

Following the report to the HSE and the staff survey, there was screening and investigation of her allegations; on October 3rd she was invited to an investigation meeting in a local hotel which was arranged for 15th October 2018. While she attended on the day, she and her husband questioned the impartiality of those conducting the investigation due to their connection with the Respondent. At the hearing she spoke of observing one member of the investigating team letting himself into the nursing home using the passcode and she saw him at a lengthy meeting in the office after she had made her report and before the date of the investigation meeting.

She left the meeting with the external investigation team without being interviewed on the allegations and heard nothing further, until she was informed on 20th November that the outcome of the investigation had been provided to the nursing home and that she could review the outcome and recommendations at the nursing home as an employee. She was given a date to attend the nursing home to review the outcome and recommendations.

The Complainant submitted grievances regarding her treatment by management following her responses to the staff survey and her complaint. On 13th November she attended an internal hearing of her grievances conducted by a Witness D. She received a letter dated 19th November stating that her grievances were not upheld. While her grievances were heard she felt that it was all about protecting the business. Prior to the meeting she had requested access to her locker where the book which was her work journal was kept, but it was gone which she describes as very odd that it was not where she left it. Following the receipt of the outcome of the internal grievance procedure where most of her grievances were not upheld, she says she felt that she could not return to the workplace, that her GP was concerned for her health and that she felt traumatised. She made her complaint in good faith.

The Complainant resigned from her employment on 21 November 2018, in a letter to the person who conducted the grievance hearing.

At the hearing the Complainant also spoke about raising two previous concerns about the treatment of residents. In response to one, she had challenged another employee. He went to the person who attended the hearing as witness B and criticised the Complainant who said the issue she raised was not taken seriously by the witness. On a further occasion she complained about the treatment of a resident directly to witness B but heard no more about it and did not know what had happened to her complaint.

On her complaint form to the WRC when asked to describe the penalisation type she stated: ‘I was penalised or threatened with penalisation by my employer for having made a protected disclosure under the Protected Disclosures Act,2014. At the hearing the complainant described the detriment as the way she was treated once the Respondent realised that she had made the protected disclosure which led to her resignation and the detriment of constructive dismissal is claimed.

The Complainant commenced employment with the Respondent on 5 February 2018. The Complainant resigned her employment on 21 November 2018. She claims constructive dismissal, relying upon the exception to the requirement of one year’s service provided by the Protected Disclosures Act 2014 (section 6(2D) of the Unfair Dismissals Act 1977 as amended).

The Complainant’s statement of main terms of employment was signed by both parties on 10 January 2018. The statement makes reference to the employee handbook and to the grievance procedure. The employee handbook was most recently revised in May 2018. The handbook contains sections on the grievance procedure, protected disclosure procedure and code of conduct. The Complainant received multiple training modules, including two courses in Prevention of Elder Abuse. The Respondent operates a comprehensive policy on Responding to Allegations of Abuse.

The issues in contention both under the Protected Disclosures Act and the Unfair Dismissals Act follow from an anonymous complaint to the HSE of which they received written confirmation from the HSE dated 27 September 2018 to the effect that an anonymous call had been received in which allegations of resident abuse were made. The Respondent was not aware at any relevant time that the Complainant was the person who made the protected disclosure until she outlined it in her WRC claim. The HSE letter states that an anonymous caller had made allegations against staff members, but not that the caller was a staff member.

The next-of-kin/appointed contact for the resident named in the complaint was contacted to ascertain whether she had any concerns about the care of the resident, who had been in the nursing home for over 15 years. Neither the next of kin or the resident had voiced any concern.

The Acting Director of Care conducted questionnaire meetings with staff on 30 September 2018 in response to the anonymous allegations. Some staff outlined concerns about lack of staffing, which related to staff cover when a person called in sick. No other staff member (other than the Complainant) made any allegation of abuse of residents.

During the meeting with the Complainant at a time when she was not known to be the source of the anonymous call, she agreed with the anonymous allegations, the only member of staff to do so. The Acting Director of Care requested another senior manager to attend at a further meeting in order to take a note-this was Witness 3. It was agreed that the Complainant would provide a written statement of allegations for the purpose of further investigation. However, she left the second meeting without doing so saying she felt unwell but did say that she wanted what she had said at the earlier meeting to stand.

Due to the allegations made in the HSE letter and by the Complainant, staff duties needed to be reorganised in order that the two staff members against whom specific allegations of abuse had been made by the Complainant would not be allocated duties involving residents. This had a knock-on effect on all staff duty allocations.

Regarding the alleged breach of confidentiality by the respondent, on 1 October 2018 a manager was informed by a member of staff that the Complainant had been talking about the interviews in the staffroom, had enquired whether other staff had seen abuse, and further indicated that she had seen the abuse herself. The manager (witness B) spoke with the Complainant to emphasise the need for confidentiality in the context of the investigation of extremely serious allegations against colleagues.

The Respondent was not aware at any relevant time that the Complainant was the person who made the protected disclosure until she outlined it in her WRC claim. The HSE letter states that an anonymous caller had made allegations against staff members, but not that the caller was a staff member. The Respondent was not aware that the Complainant had contacted HIQA at any relevant time or as early as September 2018 and the Respondent is surprised by that fact as HIQA did not visit or inspect until October 22/23.

At the request of one of the family members who had been contacted by the Complainant, a named staff member was reassigned duties. The staff member was informed of the allegation made against him as a matter of fair procedures.

The Acting Director of Care wrote to the Complainant on 3 October 2018 confirming the appointment of an investigation team and asking that she would meet with them on 12 October 2018. This date was rearranged, and a further date was confirmed to her in writing of 15 October 2018.

 A further complaint was received in 8 October 2018 from a family member of a resident that the Complainant had contacted her to discuss the matters under investigation. The Complainant furnished a medical certificate dated 10 October 2018 certifying her as unfit for work due to workplace stress from 10 October 2018 to 24 October 2018.

When the Complainant and her husband attended the investigation meeting it is said that the Complainant’s husband acted in an aggressive and obstructive manner. In particular they questioned the independence of the investigation believing that the HSE or HIQA ought to be conducting the investigation. The Complainant refused to continue the interview.

 When HIQA conducted an unannounced one issue monitoring inspection of the premises later in October there was no evidence of abuse found and staff were complimented in the inspection report.

The HSE safeguarding officer was informed of the outcome of the provider led investigation on 5 November 2018. The Complainant continued to furnish medical certificates certifying her as unfit for work due to workplace stress. By letter dated 20 November 2018 the Complainant was informed that the provider led investigation had concluded and that the outcome and recommendations could be viewed on the premises.

By letter dated 21 November 2018 the Complainant tendered her resignation.

It is understood that in a letter dated 25 November 2018 the Complainant and her husband wrote to HIQA setting out their dissatisfaction with the provider led investigation.

Legislative provisions and authorities in respect of the Protected Disclosures Act 2014 cited by the Respondent.

The Respondent’s submission set out sections 3, 5, 6, 7, 12 of the 2014 Act with extracts from related Statutory Instruments. Authorities were cited by the Respondent in defence of the claim that there was a protected disclosure and that a related detriment could be claimed. None of the authorities were provided in full to the hearing.

Counsel asserted that the intersection of constructive dismissal claims and protected disclosures can be complex and that in order for a disclosure to be a protected disclosure the reasonableness of the employee’s belief is key. If there is no reasonable basis to contend that the wrongdoing occurred, the disclosure is not protected. Under the Protected Disclosures Act a Complainant must demonstrate that they made one or more protected disclosures, that they suffered a detriment and that there is a causal connection between the two.

The Complainant objected to the independence of the provider led investigation into the allegations of abuse and other matters. The investigation complied with statutory duties and regulatory requirements.

The Respondent’s position is that the Complainant cannot rely on the provisions of the Protected    The extensive investigation carried out demonstrated that there was no reasonable basis for the allegations of resident abuse.

(b)   The Complainant did not make her complaint to the Respondent either in line with the Respondent’s policy for protected disclosure or within the meaning of s.6 of the 2014 Act.

(c)    In order for the disclosure to fall within s.7 of the 2014 Act, the Complainant must reach the higher threshold that it was reasonable for her to believe that the matters were substantially true and be made to a prescribe body. It is HIQA and not the HSE who are the prescribed body for the purposes of Section 7(2).

The complaints about alleged treatment of the Complainant following the making of the abuse allegation was dealt with pursuant to the grievance procedure conducted by a Director(A). The complaints were not upheld. The Complainant was informed of her right to appeal pursuant to the grievance procedure.

The provider led investigation complied with statutory duties and regulatory requirements. The Complainant claims that the Respondent failed to keep confidential her identity as maker of the complaint. This allegation appears to disregard the fact that the Complainant spoke openly with other staff about her views and inappropriately contacted family members of residents.

In relation to the penalisation claim, the Complainant has not established that she suffered any detriment.

The Complainant has established no causal connection between the making of the complaint and the alleged detriment.

(a)    The changes to rostering was company-wide and necessitated on a temporary basis during the course of the provider led investigation. This was explained to the Complainant as part of the grievance process.

(b)   The Complainant in fact had no change of duties.

(c)    The allegations concerning the behaviour of other employees could not be verified or investigated where the Complainant refused to identify the persons she alleged were ignoring her or whispering about her.

(d)   Confidentiality in the course of the investigation was maintained and emphasised to staff. The Complainant herself spoke with her colleagues about her allegations and inappropriately contacted family members of residents.  

Witnesses

The following is a summary of the witness evidence provided in response to questioning by Counsel for the Respondent, the Complainant and the Adjudication Officer.

The Respondent provide four witnesses who gave evidence related to their involvement in the matters raised by the Complainant.

Witness A was the manager who gave evidence of meetings with staff and conducting the staff survey. She stated that until the WRC Complaint form was received she was unaware that the Complainant made the anonymous report to the HSE. When the Complainant said she agreed with the complaints, the witness contacted a senior manager-Witness C who later attended a meeting with the Complainant to take notes of her issues under the three points of the staff survey.

Witness B dealt with the complaints of being unfairly rostered; being followed; being denied access to residents; confidentiality; interaction with one of the staff members who was complained about and the handling of previous issues raised by the Complainant. The witness denied any individual unfairness regarding the rostering arrangements as these were necessitated by the requirement to re organise staff following the Complainant’s response to the staff survey and the allegations against other members of staff as well as a request from a relative of a resident after that person was approached by the Complainant. Staff were informed of the reasons for re rostering of duties. Regarding confidentiality, she stated that once the Complainant had named those whom she alleged abused residents, those staff were entitled to know who had made the allegations. All staff were informed not to discuss the matters under investigation with other members of staff. When the witness realised that one of the employees who was the subject of the complaint had approached the Complainant at work, she intervened to prevent any discussion. She was made aware of the Complainant attempting to discuss the matters under investigation with other members of staff. The witness explained the reasoning behind the reallocation of work to the Complainant denying that there was any attempt to exclude her from areas of work or isolate her in the workplace.

Regarding previous issues raised by the Complainant, she recalled being approached about an issue between the Complainant and a male carer. This was not treated as a complaint from the Complainant and under questioning by the complainant she agreed that it was the other member of staff who approached her first-criticising the Complainant. There was a further issue raised by the Complainant regarding a male carer. This was addressed by the witness through observation of the male carers practice. She was satisfied that there was no abuse. Asked about the record of this issue, she explained that she made a note on the carers file also explaining that there was no feedback to the Complainant as she regarded the actions and the managers intervention with the male carer as a private staff matter.

Witness C holds a senior administrative position at the nursing home. He stated that until the receipt of the complaint form from the WRC, they were unaware that it was the Complainant who made the anonymous report to the HSE. At the request of witness A, he had attended a meeting with the Complainant to take notes after the Complainant had said that she agreed with the three points in the report to the HSE. A note of his account of the contact from Witness A was provided to the hearing. That statement commenced: ‘ On Sunday evening 30th September 2018 I received a call from (Witness A) to say that she had done an initial screening with one of the staff and that staff member had agreed with all matter in the HSE letter, include allegations of abuse by other staff.’ Asked at the hearing how, in light of the direct relationship drawn by Witness A between the response of the Complainant to the staff survey and the contents of the report to the HSE, he could maintain that he did not know that it was the Complainant who had made the complaint to the HSE, he replied that he did not know how to answer that question.

Witness D is the most senior manager and a Director of the Company. She spoke about her role in overseeing the reallocation of duties following the complaints made by the Complainant and a request from a relative of a resident. She referred to an approach by the Complainant to a relative of a resident which occurred in the dining room and reported by the relative. The witness spoke about the rostering of duties to the Complainant and why these were part of her normal duties necessitated by the requirement to move staff around. Regarding the investigation team, she stated that the members of the team were former employees of the HSE. She explained that the one observed entering the nursing home using the door code was involved in the nursing home in support of residents. Another is associated with the directors of the nursing home through a separate company. Asked why the Complainant was not referred to an occupational health physician or similar medical provider when she had submitted certificates stating she was suffering from workplace stress, the witness said she did not know what to do and did not want to add to the stress of the Complainant.

Grievance and Resignation

The Complainant submitted a medical certificate dated 10 October 2018 certifying her as unfit for work due to workplace stress from 10 to 24 October. The Complainant did not return to work at any stage after 10 October 2018 until her resignation on 21 November 2018. On 22/23 October 2018 HIQA conducted an unannounced one issue monitoring inspection of the premises. There was no evidence of abuse found and staff were complimented in the inspection report. In a letter dated 24 October 2018 the Complainant wrote to the Respondent making allegations regarding her treatment at work on 30 September 2018, 1 October 2018, 3 October 2018 and 8 October 2018.

By way of a letter dated 29 October the Respondent replied to the Complainant saying that her allegations would be dealt with by way of the formal grievance procedure and enclosing a copy of the procedure. The letter invited the Complainant to a grievance meeting on 1 November 2018 in her workplace.

By way of letter dated 31 October 2018 the Complainant indicated she was not able to attend the grievance meeting due to being off sick and due to the short notice.

By letter dated 1 November 2018, the Respondent proposed a range of alternate dates for the grievance meeting or seeking a date from the Complainant.

By letter dated 7 November 2018, the Managing Director confirmed the rearranged grievance meeting for 12 November 2018. By letter dated 11 November 2018, the Complainant requested that her husband be permitted to attend the grievance meeting with her and requested the book and personal items in her locker. On 13 November the Respondent acceded to the Complainant’s request that her husband would attend the rearranged grievance meeting and that meeting took place on 13 November 2018.

Staff are provided with notebooks for use during the course of their duties which they are requested to keep in their lockers due to confidentiality. These notebooks are to be returned to the Respondent for shredding once full and staff are then provided with a new one.

 In a letter dated 19 November 2018 the Complainant wrote that “it was not possible for management to investigate itself”, that she had not been offered to sign the notes of the meeting of 13 November 2018 and that the book in her locker had “disappeared”. On 19 November 2018 the Complainant was issued with the written outcome of the grievance hearing in which the complaints were not upheld but the Complainant’s preference for not working consecutive days in the dining room was noted and a commitment given that she would not be allocated such duties more than three times per week.

 The Complainant was informed of her right to appeal the decision and that her complaints set out in her letter of the same date could be raised in any such appeal.

 In the interim the Respondent had initiated a provider led investigation with which the Complainant refused to cooperate, and she was notified on 20 November 2018 of the outcome and recommendations which could be viewed on the premises.

 By way of letter dated 21 November 2018 the Complainant tendered her resignation. In response the Respondent invited the Complainant to reconsider her resignation and again pointed out that the grievance decision could be appealed. By letter dated 23 November 2018 the Complainant confirmed her resignation and indicated she did not wish to appeal the grievance decision. It is understood that in a letter dated 25 November 2018 the Complainant and her husband wrote to HIQA setting out their dissatisfaction with the provider led investigation.

 On 28 November 2018 the Respondent wrote to the Complainant accepting her resignation and noting that she had misplaced her company book. By letter dated 4 December 2018 the Complainant refuted the suggestion that she had lost her company book. By letter dated 13 December 2018 the Respondent furnished the Complainant with a copy of all her letters, her P45 and her sick certificate.

In rejecting the claim of alleged unfair dismissal, the Respondent asserted that the employee claiming constructive dismissal has an obligation to exhaust the grievance procedure and that such obligation is well established. Extracts from decisions and authorities were cited without providing any copy of the decisions cited. Counsel for the Respondent asserted that the intersection of constructive dismissal claims and protected disclosures can be complex and that in order for a disclosure to be a protected disclosure the reasonableness of the employee’s belief is key. If there is no reasonable basis to contend that the wrongdoing occurred, the disclosure is not protected. Under the Protected Disclosures Act a complainant must demonstrate that they made one or more protected disclosures, that they suffered a detriment and that there is a causal connection between the two. If the Complainant cannot rely on the provisions of the 2014 Act to the effect that hers was a protected disclosure, she does not have the requisite service to bring a claim under the Unfair Dismissals Act 1977 and that claim must be dismissed.

 Even if the Complainant is entitled to bring her constructive dismissal claim, that claim fails in substance. There is nothing alleged which would satisfy either the conduct of reasonableness tests so as to justify the Complainant’s resignation in the circumstances. This is underscored by the fact that the Respondent responded to the initial resignation by asking the Complainant to reconsider.

 The Complainant’s complaint about her alleged treatment following the making of the abuse allegation was dealt with pursuant to the grievance procedure. The Complainant was informed of her right to appeal the grievance decision and expressly refused to take this option.

 The Complainant objected to the independence of the provider led investigation into the allegations of abuse. The investigation complied with statutory duties and regulatory requirements.

 The Complainant has established no causal connection between the making of the complaint and the alleged detriment. The Respondent sought the dismissal of the complaint having regard to the relevant provisions defining a protected disclosure, a failure to establish a detriment of constructive dismissal or a causal connection between a disclosure if such occurred and a resignation having regard to the facts of the case, the procedures followed by the Respondent and the failure of the Complainant to appeal the decisions when provided with the opportunity to do so .

Findings and Conclusions:

In any complaint which incorporates a complaint of penalisation related to a claim of having made a protected disclosure, three tests are generally applied to determine if the complaint is well founded:

a. was there a protected disclosure-the essential test

b. where it is found there was a protected disclosure did the complainant experience a detriment

c. Where a and b are found to have occurred, is there a causal connection between the protected disclosure and the detriment suffered in the sense that the detriment would not have occurred but for the making of a protected disclosure-the but for test as it is known.

The Question of a Protected Disclosure

While the Respondent has cited various provisions of the legislation and seems to reject that the complainant made a protected disclosure, the finding is that the Complainant did indeed make a disclosure which was or ought to have been protected under the Protected Disclosures Act based on the complaint to the HSE or in the alternative the employer’s own policy giving effect to the Act.

In the first instance it is found that in making her anonymous report to the HSE she met the test of the legislation at section 5 from which the relevant sections are extracted:

Section 5:

“5(1) For the purposes of this Act “protected disclosure” means, subject to subsections (6) and (7A) and sections 17 and 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, 9 or 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, (d) that the health or safety of any individual has been, is being or is likely to be endangered,

The complainant contacted the HSE about issues affecting the care of the elderly in a residential setting. She disclosed her belief that there was abuse of certain residents by a male member of staff and she referred to her concerns about understaffing and a shortage of supplies which, if correct, could also have negative implications for the residents in terms of the quality of their care. Her concerns about a shortage of staff and supplies were supported by other members of staff in response to the staff questionnaire which adds credence to her concerns regarding these matters. It is clear that the complainant, having previously and unsuccessfully, as far as she was concerned, attempted to address her concerns about what she believed amounted to abuse by a male member of staff within the residence either with another member of staff or to a manager, held a reasonable belief that there were relevant wrongdoings in terms of the providers legal obligations to residents, that the provider was failing to address relevant wrongdoings, that the issues disclosed by her represented possible endangerment to residents. This information came to her attention in the course of her work.

The essential features of section 5 of the Act which defines a protected disclosure are therefore met by the Complainant.

It is accepted that in making her complaint to the HSE and not to HIQA, the Complainant does not enjoy the protection of Section 7 of the Act as it is HIQA and not the HSE which is the body prescribed under the Health Act 2007 in relation to:- “all matters relating to the standards of safetyand care of persons receiving health and social care services in the public and voluntary health sectors and social care services in the case of the private health sector, as provided by the Health Act, 2007 (No. 23 of 2007)”.

However, the complainant is found to have the protection of section 6 (1) and (b)(ii) of the Act where it states:

“6(1) A disclosure is made in the manner specified in this section if the worker makes it— (a) to the worker’s employer, or (b) where the worker reasonably believes that the relevant wrongdoing which the disclosure tends to show relates solely or mainly— (i) to the conduct of a person other than the worker’s employer, or (ii) to something for which a person other than the worker’s employer has legal responsibility, to that other person.

In making her complaint to the HSE-the Complainant did not make a report of her concerns to any office of the HSE but rather she made her report to the local Safeguarding & Protection Team Vulnerable Adults and the report was received by the Safeguarding Social Worker. It is accepted that she did so in the reasonable belief that the persons with whom she communicated in the HSE had legal responsibility for protecting vulnerable adults.

While the employer procedure at section 6.2 refers to reporting any issues to HIQA it also states: ‘The Elder Abuse Case Worker must be notified of any allegations, suspected or confirmed abuse of a resident. The address of the relevant HSE address for the nursing home is inserted here. ‘

At Section 4.4 of the employer a further reference is made to the HSE. The conclusion is that it was reasonable of the Complainant to disclose her concerns to the HSE in the reasonable belief that the relevant wrongdoing, abuse, was related if not solely, mainly, to something for which a person other than the worker’s employer has legal responsibility(HSE), to that other person (HSE) and thus the Complainants actions were consistent with the terms of section 6(1)(b)(ii). While the HSE does not have responsibility as a prescribed person under Section 7 of the Protected Disclosures Act for investigating such complaints it is reasonable to conclude that this does not preclude their having legal responsibility for ensuring that there is no abuse of vulnerable adults per se simply because they are in private residential care and/or where that care is funded through the fair deal scheme. These conclusions are consistent with the titles used by the social worker section in the HSE, the references in the staff handbook and the fact that the Respondent reported the outcome of their own investigation to the HSE.

It is found that the Complainants actions were comprehended by Section 5 and 6 of the Protected Disclosures Act 2014 as set out.

However, even if the disclosure made to the HSE did not attract the protection of the Protected Disclosures Act 2014 (and I make no such finding), the evidence at the hearing including the evidence of the Respondent disclosed that she made exactly the same disclosure directly to the Respondent. This arose in the following circumstances:

On receipt of the correspondence from the HSE dated September 27th, 2018, the employer-initiated inquiries by way of what they have termed preliminary screening among the staff at a series of one to one meetings to establish if they agreed with the three items of concern disclosed to the HSE by the anonymous staff member. When asked, the Complainant answered honestly that she agreed with the complaints. She went on to name male members of staff whose behaviour had caused her concern. In doing so, at that point the disclosure clearly was made in the manner specified at Section 6(1)(a) of the Act set out above.

The contention by and on behalf of the employer, that until they received the complaint form from the WRC they did not know the identity of the person who had contacted the HSE is entirely lacking in credibility. From the moment the Complainant confirmed her agreement with the three elements of the disclosure to the HSE, it is clear that, while the Respondent did not ‘know’ it was the Complainant who had made the anonymous complaint, this became a working assumption on their part. It is not necessary to go beyond the terms of the letter to the Complainant of October 3rd, 2018 to find support for this conclusion. That letter was issued in follow up to the meeting of September 30th where the Complainant had confirmed she agreed with the three points of the disclosure to the HSE. The letter sets out the four points which the Investigation Team were required to establish and the last of these states:

(d) the reasons why you appear to have considered it appropriate to(illegible) certain allegations against Nursing Home staff members to persons who are not part of the Nursing Home team, rather than to the Person-In-Charge of our Nursing Home or to me as the Acting Director of Care or to any of the nursing staff within the Nursing Home.’

The inclusion of the above point not only clearly indicates that the Complainant herself was now under investigation but was consistent with the report from the Acting Director of Care to Witness C where she told him ‘that she had done an initial screening with one of the staff and that staff hadagreed with all matter(sic) in the HSE letter, to include allegations of abuse about other staff.’ The link was made, and it was continued into the external investigation process.

The approach taken was to investigate the actions of the Complainant rather than affording her the protections of the Protected Disclosures Act to which she was entitled no later than September 30th when she disclosed her concerns to the employer in agreeing with the three points of the report to the HSE. In answering those questions in the affirmative the Complainant also complied with her obligations under Section 4.4 of the employer’s own policy where it defines elder abuse:

Any staff member who receives information, suspects or is concerned that a resident has been abused, is being abused or is at risk of being abused has a duty of care to report the matter as soon as possible to the manager on duty. The staff member is not responsible for deciding whether or not abuse has occurred but is obliged to report suspicions or allegations of abuse so that appropriate action can be taken(HSE 2005).

In answering the questions put to her, the Complainant complied with her obligations whereas the Respondent failed to respond in like manner and failed to protect her or her disclosure:

4.5 Staff reporting abuse shall be assured that:

•             They shall be taken seriously

•             They shall be protected from the risk of reprisals or intimidation

•             They shall be informed of the action taken and the outcome

Given that two of the four Terms of Reference of the investigation required the Complainant to answer for her actions and given that the Complainant was immediately named to the other members of staff against whom she had made complaints and then went on to be named in the terms of reference for the investigation, it is self-evident that the Complainant was afforded no protection and was instead both named as the complainant and possible whistle blower and then informed that she was to be subjected to investigation regarding her own conduct.

The conclusion on the question as to whether the Complainant made a protected disclosure is, that having made a disclosure of concerns to the HSE once those concerns were articulated by the Complainant to the Respondent on September 30th those concerns should have been treated as a protected disclosure to the employer by reference to Section 6(2) of the Act or, in the alternative, by the employer as a disclosure under their own policies. The treatment of the Complainant stands in direct contrast to the evidence of witness B where she stated that the outcome of a previous complaint against one of those named by the Complainant on September 30th was not provided to the Complainant because it was regard as a personal staff matter and then when it came to the complaints made against other staff on September 30th 2018,they were entitled to know the identity of their accuser. No similar regard was shown towards to the Complainant at any stage and there were consequences for her when other staff in the employment cut her out of their Facebook page and Whats App and one of those who she complained about attempted to speak to her about the complaint against him. She was identified at every level as a problem rather than a member of staff who had raised matters of concern not only externally but internally and on more than one occasion. The approach adopted is not inconsistent with the Respondents Policy in cases of making a protected disclosure which refers to limited protection for those making such disclosures, sets the bar of substantially true for such disclosures and refers to damages and disciplinary action as potential outcomes in the event of making disclosures. Whereas the policy does provide for complete confidence and the protection of the employee’s identity, it is noted that HIQA in their unannounced visit in October 2018 stated:

‘Although staff had received training in the centres own policies in relation to concerns of abuse it had become evident during the current enquiry some staff had not fully understood the protection the centre’s policy offered them when making a disclosure.’

It is a matter of fact that the Complainant was offered and received no protection from the Respondent either under the reporting abuse or protected disclosure sections of the Respondent’s Policy. Instead, even before her complaints to the employer were investigated, her actions were given equal billing to her complaints in the providers investigation and in terms which were clearly intended to subject her to investigation at least as much as her issues of concern about residents. Her own conclusion that the Respondent was more concerned about the business is not unreasonable in the circumstances.

Moving onto the issues which gave rise to the Complainants grievances, given the patent lack of truthfulness found in the assertion in the submission, repeated by witnesses at the hearing, that the Respondent did not know that it was the Complainant who had contacted the HSE, greater credence is given to her grievances which represent forms of isolation or attempted isolation from residents after September 30th. Whether those issues were whispering, being followed, being confined to a designated area with no direct resident contact on successive days they all point to watchfulness on the part of the managers regarding her conduct. She undoubtedly contributed to the air of mistrust by her own approaches to the next of kin of residents whom she endeavoured to engage with her complaints about the treatment of certain residents and those approaches were in turn reported back to senior managers. The Complainant may not have assisted her own cause through these approaches, but the denial of any reprisals or singling her out for particular treatment or attention is belied by the fact that she received no support, no protection and no concern for her welfare at any stage after September 30th, 2018 and was effectively ostracised.

The Respondents submission that the claim of an unfair dismissal must fail because the Complainant failed to appeal the outcome of the decision on her grievances and therefore to complete the grievance procedure is not accepted. Firstly, the internal grievance itself was one which should have been regarded as exceptional relating as it did to the treatment of the Complainant by all managers at the place who had any involvement in the nursing homes reaction to the disclosure of her concerns and this included the grievance hearer. Each of the managers had a role in responding to the HSE Report in one way or another whether that was in interviewing the Complainant, taking notes of her meeting, reorganising the workplace, dealing with the families of residents, establishing the Investigation Team. When it came to considering her grievances, management were in effect investigating their own conduct and by extension their treatment of the Complainant. In the circumstances the internal hearing of her grievances could not be regarded as objective by any reasonable standard. Page 36 of the staff handbook provides for an external investigator to be appointed where justified by the circumstances ‘From time to time it may be necessary to appoint an external person to investigate any grievance; such an appointment will be deemed a last resort and only used where absolutely necessary.’ It is difficult to imagine circumstances which so justified the use of this provision in the grievance procedure. Secondly, having concluded that the hearer(and other managers) had assumed that it was the Complainant who had made the protected disclosure and therefore should not have heard her grievances, the reference of an appeal to the manager to whom any reasons for dissatisfaction with the outcome of the grievance decisions were to be submitted, accompanied by full reasons (Witness C), when that person was so closely related to the Hearer was a farcical representation of a true appeal process.

The Complainant was out sick certified as suffering from workplace stress. No supports or even a modicum of concern was expressed for her wellbeing.

She was isolated in the workplace from the time she reported her concerns to the Respondent by agreeing with the items of complaint made in the report to the HSE. She was denied the protection of the Protected Disclosures Act and the terms of the Respondents own policy for anyone reporting abuse. Under the terms of Reference of the Investigation, her conduct was to be investigated at least as much as her concerns about the care of the residents. The external investigation was conducted by at least two people personally known to the Respondents senior managers. Her grievances were heard by a manager involved in the decision making related to her issues.

The untenable nature of the future employment relationship was compounded by the reference by the hearer contained in the letter asking her to reconsider her position to why the complaint was made externally in the first instance where it stated’ I feel it would be only fair to forewarn you that you will continue to be subject to our consultation process. Therefore, it would still be our intention to address the outstanding matters which existed prior to your resignation.’ Nothing friendly or well-intentioned towards the Complainant could reasonably be taken from this additional clause inserted by the hearer, nor was it by the Complainant as she referred to that point at the hearing as a part of the reason why she did not accept the offer to reconsider her resignation.

The Complainant did suffer a detriment because of making a protected disclosure and her claim that the detriment was one of a situation in the workplace directly related to the unreasonable behaviour of the employer which is well founded. The causal connection has been established by the Complainant. From this conclusion the Complainant has met each of the usual tests applied in cases where penalisation is claimed following on from the making of a protected disclosure.

The Complainant’s claim of unfair dismissal satisfies the test of a constructive dismissal set out in Section 1(b) of the Unfair Dismissals Act:

‘the termination by the employee of his contract of employment with his employer, whether prior notice 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,’

In this case it is the ‘reasonableness’ test which applies-one which relates to a situation which because of the employers conduct towards the employee, it was objectively reasonable for her to terminate the employment relationship. I am satisfied that the treatment to which the complainant was subjected as a consequence of her having made a protected disclosure made it reasonable for her to terminate her employment with the Respondent.

As the Complainants decision to terminate her employment is found to be justified by reference to section 1(b) of the Unfair Dismissals Act and that termination is found to have resulted directly from the conduct of the employer following the making of a protected disclosure by the Complainant, the Terms of Sections 6(2) and(ba) are also met:

‘Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed to be an unfair dismissal if it results wholly or mainly from one or more of the following:

the employee having made a protected disclosure’

The requirement for a minimum of one years’ service set out in Section 2(1) of the Unfair Dismissals Act does not apply in this case as provided for in Section 6 (2D) of the Unfair Dismissals Act as amended to provide for cases of dismissals which follow from protected disclosures.

The facts of the case are supplied in detail and the reasoning in this Decision is so extensive due partly to the number of issues it raises related in turn to a succession of events occurring over a relatively short period and also having regard to the significant concerns raised by this case. The treatment of the Complainant in response to her having the courage to raise her reasonable concerns, first internally, then externally and then internally again is exactly the type of treatment the Protected Disclosures Act was designed to encourage by providing at least a degree of protection when making a complaint and absolute protection against penalisation for having made genuine complaints made based on a belief that a wrongdoing had occurred or was ongoing. While it is not the role of this decision maker to make any judgements regarding the legitimacy of the complaints made by the Complainant to the HSE and the Respondent, any investigation of her complaints was incomplete because she did not co-operate with the provider led investigation out of her concerns as to the independence of that investigation. This was a person who had no personal grievances in the employment at any stage prior to her raising concerns internally or externally and the Respondent pointed to no concerns about her conduct or performance while in their employment. They spoke about facilitating her with changes in her working hours. Everything changed on their part once she agreed with the concerns raised in the anonymous report to the HSE and from that point on her employment relationship became increasingly untenable to the point where it is self-evident and certainly accepted that she had no option but to resign. There is no doubt in this reasoning that but for making a disclosure to an external body, the Complainant would not have suffered the treatment which led to the detriment claimed.

In many ways   a whistle blowers worst nightmare was played out in this case. The redress awarded in this decision reflects the limitations of the compensation available under the terms of the Unfair Dismissals Act where the detriment is one of dismissal. The redress under Section 7 (1A) of the Act was expanded to provide for dismissals resulting from making a protected disclosure. However, as the terms of Section 7(c)(ii) remain applicable for the calculation of financial loss when the Complainant experiences no loss as in this case because she obtained alternative employment. The expanded terms are therefore of no benefit to the Complainant and provide little by way of a deterrent to the repetition of such treatment albeit that dismissal is arguably the worst possible detriment which could follow from making a protected disclosure.

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.

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

The complaint of unfair dismissal following the making of a protected disclosure brought by the Complainant is well founded. There remains the matter of the appropriate redress. Given the way the employment relationship ended, the redress of compensation is the only feasible one which could apply in this case. As the Complainant obtained alternative employment on December 7th, 2018 with no loss of income or benefits, the maximum available redress by way of compensation is four weeks pay, which amounts to €1262.50 based on the Complainants rate of pay of €631.25 per fortnight.

Constructive Dismissal-Protected Disclosure