Complainant

Respondent

Anonymised Parties

A Care Assistant

A Disability Service Provider

Representatives

SIPTU

IBEC

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00031955-001

01/11/2019

The complainant submits that she raised a protected disclosure and was penalised and that ‘but for’ raising the disclosure she would not have been penalised.

During this hearing, much documentation was presented including minutes from meetings, statements from employees and correspondence exchanged between the parties; and whilst I will not be referring to every event or document, I have taken into account all the submissions including oral and written made to me in the course of my investigation as well as the evidence presented at the hearing.

A brief chronology of events can be summarised as follows:

On 5th April 2019 the complainant emailed Assistant Director of Client Services Mr A about the work performance of a social care worker, Mr B. The complainant met with Mr A on 9th May 2019.

On 21st May 2019 the complainant emailed Mr A and others of her concerns again with regards Mr B whom she alleged arrived late for work and that as a result service users and staff were put at risk.

Two investigations took place: one into the alleged risks to service users and another into the allegations against Mr B.

On 25th July the complainant was advised that investigation into the alleged risks to service users determined that there were no further grounds for progressing an official safeguarding investigation.

An interim investigation finding was issued to the complainant on 13th August 2019 into the allegations against Mr B and the complainant was temporarily relocated while the investigation continued.

A final investigative report was issued on 11th October 2019 which made permanent the complainant’s temporary relocation and confirmed that no parties to the complaint had a case to answer.

The complainant is a Care Assistant with the respondent since 2014 and started working at the residential centre on 6th March 2019.

The complainant raised concerns to the respondent on 5th April and again on 21st May mainly around Mr B’s alleged failure to arrive at work on time and in her email of 21st May the complainant outlined that she had concerns that something terrible was going to happen as a result of the absence of Mr B. It was submitted by the complainant that it was mainly, events arising from the email of 21st May from which the complainant alleges that she made a protected disclosure for the purpose of this complaint. The complainant in this email of the 21st referred to specific incidents that she alleged occurred as a result of the failure of Mr B to be on duty, on time. One of these incidents related to the alleged choking on food of a service user and the behaviour of another service user as there were not enough staff there to deal with him owing to Mr B’s absence.

An investigation took place and an interim investigation finding issued on 13th August 2019 advised the complainant that she would be temporarily relocated while the investigation continued. The complainant was advised that owing to the shortage of social care workers the respondent was unable to find a way to backfill the position of Mr B. During the temporary relocation, the complainant was paid the difference in pay that would have occurred if she had not been relocated.

Throughout this time the complainant regularly emailed the respondent to express her unhappiness at the decision to relocate her and that she did not want to move. A final investigation report on 11th October 2019 advised the complainant that Mr B did not wish to work alongside the complainant and did not wish to partake in mediation and therefore the complainant’s relocation to another centre was permanent. The complainant was advised that no parties had a case to answer in relation to the complainant’s allegations. During the hearing the complainant expressed her upset as what had occurred and how she had been treated and how it had caused her significant anxiety for which she has been absent from work. The complainant submitted that she was willing to engage in mediation with Mr B and that Mr B had expressed his willingness to be relocated.

It was submitted that the complainant had raised a protected disclosure as defined under Section 5(2) of the Act. The complainant submitted that the information disclosed in her email dated 21 May was relevant information, made in her reasonable belief, showing one or more relevant wrongdoing; and that the factual basis of the information provided was found to be correct and it had been confirmed that there was no apportionment of blame in any way to the complainant. The complainant had concerns about the timekeeping of Mr B, that he was putting service users and staff at risk and it was submitted that the complainant was clearly redeployed for a protected act which was confirmed in a letter from the respondent on 11 October 2019. The 2014 Act does not contain a test of reasonableness for an act of penalisation.

The complainant submitted that it was not necessary for the complainant to establish retaliation or bad faith on the part of the respondent and it was only necessary for her to establish that her move was imposed “for” her acts of disclosure or that the move would not have occurred “but for” those acts.

Following the hearing the complainant advised that she wished to provide further information as she was upset that the respondent furnished at the hearing, statements from the investigation. A copy of her documentation was sent to the respondent. I will address this later in my Findings and Conclusions.

Case law referenced included Aidan & Henrietta McGrath Partnership v Monaghan PDD162, Watters Garden World Ltd & Panuta EDA098.

The respondent confirmed that the complainant had submitted complaints against Mr B on 5th April and again on 21st May.   In the email of 21st May the complainant referenced incidents that had occurred at the home of service users which raised serious safeguarding concerns for the service users.   It had been alleged by the complainant that a service user “nearly choked to death” and was “choking for half an hour” which was a safeguarding concern of neglect. A second issue reported concerned alleged an safeguarding issue of emotional abuse of a service user as it was alleged that the service user was irritated by staff who could not understand his sign language. The complainant had alleged that these were as a result of Mr B’s absence.   Information regarding these incidents had also been inputted on the respondent’s Quality Management Information System (QMIS) by the complainant . Owing to the seriousness of the allegations they were referred to the Designated Officer who engaged a safeguarding assessment including looking for additional information and a detailed investigation commenced.

The complainant co-operated and attributed the incidents to Mr B whom she alleged was late for his shift. The complainant conceded that her choice of language used in her email and on the QMIS report may have misrepresented the alleged choking incident and admitted that she may not have correctly chopped up the food for a service user and that it was likely to have led to that service user “spitting up” food rather than “nearly chokingto death” as she had previously stated.

As part of the investigation, the respondent were advised that Mr B had informed the respondent in advance that he would be late for his shift and were satisfied with his explanation. The respondent had also determined through their investigation and interview with another work colleague present at the time Ms C, that she is able to sign and that the service user had become agitated with the complainant’s own sign language. Ms C also advised that it was her preference that she would not have to work with the complainant again. Mr B also detailed in his statement that he would not feel safe working with the complainant again in the house. The Designated Officer as a result of the thorough investigation determined that there was no further grounds for progressing an official safeguarding investigation was satisfied. The complainant was also advised there had been some serious factual inaccuracies contained in her complaint.

While the complainant’s complaints were investigated, staffing arrangements were very difficult as Mr B did not wish to continue working with the complainant at the house. The respondent had been able to manage this for a period of time but it was becoming unsustainable and the respondent felt they were faced with no alternative but to temporarily relocate the complainant.   The complainant detailed her unhappiness at this decision but the respondent was left with no alternative as it was very difficult due to the labour market to source social care workers.   The respondent also submitted that employees work in the home of service users and the safety and well-being of service users is of paramount importance.

On 11th October 2019 a final investigation report was issued which determined that all parties to the case had no case to answer and that “the submission of this complaint has regrettably led to a situation which has caused a breakdown of workplace relationship between…staff”.   It was detailed that the respondent was left with no alternative but to relocate the complainant permanently without apportioning blame in any way to the complainant and evidence on the day attributed this partly to labour market conditions; namely it is more difficult to hire a social care worker than a care assistant.

The respondent responded to SIPTU’s letter that the complainant had been penalised for making a protected disclosure advising that the complainant had a right of appeal of the decision made but no appeal was received. The respondent submitted that they did not accept that the complainant had made a protected disclosure and that it was the right and obligation of every employee of the respondent to raise concerns which would then be investigated under the various policies. It was set out that the complainant did not reference a protected disclosure until after the final investigation report. It was detailed that while the complainant appeared stressed out by what occurred, none of her colleagues on duty shared that type of reaction.

Following the hearing and the complainant’s submission of additional documents, the respondent detailed their objection to the admission of supplementary documentation and that such submissions should have been made at the hearing. I will discuss this further on in my Findings and Conclusions.

Case law cited including Donegal County Council v Liam Carr PD15/5.

Following the hearing, the complainant submitted additional documentation. The respondent objected to any additional submissions from the complainant. The documentation submitted had no cover letter outlining what the documentation was specifically referencing and appeared to be random pages regarding the investigations that appears to have been in the main covered already at the hearing. I, therefore have not considered this additional documentation.

The complainant details that she made protected disclosures and that as a result of the protected disclosures she was penalised when she was relocated and that ‘but for’ her making the disclosures, she would not have been relocated. The respondent submits that it was a grievance and not a protected disclosure; the nature of which was a habitual occurrence for the sector and which the respondent’s staff and policies are designed to deal with and that the respondent was left with no alternative but to move the complainant as relationships had broken down between the complainant and Mr B.

it is, therefore, first necessary for me to establish if a protected disclosure has been made before I can examine whether penalisation, within the meaning of the Act has occurred.

Protected disclosures

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 that the respondent’s policy defines a grievance as:

“a complaint which has been presented by an employee or a group of employees to a Unit Director/Management representative in connection with terms and conditions of employment, working environment or working relationships”

It is clear that the email of May 21st is outlining a breaking down of relationships between the complainant and Mr B, however, I also note that the complainant references in her email :

“(a service user) nearly choke to death because nobody was supervising her”,

and yet further on “I have said time and time again something terrible is going to happen because of (Mr B’s) incompetence but for some reason im(sic) not been believed”.

Later on in the email the complainant submits “What is going to be done about this? (Mr B) cannot keep putting the service users at risk and the staff at risk like this”.

The complainant later accepted her part in the alleged choking/coughing incident owing to her failure to chop up the food properly but also detailed that this was “because there was only 2 staff on when there should have been 3”.

It appears that a full and thorough investigation was carried out with regards to the alleged safe guarding issues which ultimately determined that there were no concerns with regard to the service users’ health and safety. However, it was clear that the respondent treated the allegations as a serious matter. In a letter from the respondent dated 13th August 2019, to the complainant, the respondent advised that “the primary and immediate focus of the investigative team is that they gave rise to safeguarding concerns which obviously must require immediate attention.   Thankfully in the context of our safeguarding concerns the Designated Officer allayed our fears over same”.  

As determined in PDD162 Aidan & Henrietta McGrath Partnership v Anna Monaghan, “A grievance is a matter specific to a worker whereas a protected disclosure is where a worker had information about a relevant wrongdoing”. The respondent submitted that this instant complaint mirrors that of Donegal County Council v Liam Carr PD/15/5, but I note in that said case that the complainant had people management responsibilities for those whom he reported whereas in this instant complaint the complainant is lower down the hierarchy than the person she made the complaint against. On that basis, I find that as per Section 5(2)d the complainant had a reasonable belief about a relevant wrongdoing, namely that the health or safety of an individual had beenendangered,which came to her attention in connection with her employment. I am satisfied that the disclosure made by the Complainant meets the requirements of S5 of the Act and comes within the definition of a protected disclosure.

Penalisation

Section 3(1) sets out that

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

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

(e) unfair treatment,

(f) coercion, intimidation or harassment,

(g) discrimination, disadvantage or unfair treatment,

(h) injury, damage or loss, and

(i) threat of reprisal;

Section 12 goes on to say ;

12. (1) An employer shall not penalise or threaten penalisation against an employee, or cause or permit any other person to penalise or threaten penalisation against an employee, for having made a protected disclosure.

(2) Subsection (1) does not apply to the dismissal of an employee to whom section 6(2)(ba) of the Unfair Dismissals Act 1977 applies.

(3) Schedule 2shall have effect in relation to an alleged contravention of subsection (1) .

It is set out in a health and safety judgement of Shamoon v Chief Constable of the Royal Ulster Constabulary ([2003] UKHL 11 per Lord Hope at para.33; [2003] I.C.R. 337; [2003] I.R.L.R. 285; [2003] 2 All E.R. 26.) that “the test for what constitutes a detriment is an objective one and the Court should consider if a reasonable worker would or might take the view that the treatment complained of was, in all the circumstance, to his or her detriment”. The Labour Court stated that there is a requirement “to show a chain of causation between the impugned detriment and the protected act or omission” Óglaigh Náisiúnta na hÉireann v McCormack (HSD/115).

I note that the respondent paid the complainant for loss of earnings during the temporary relocation. While the temporary relocation and the permanent relocation caused much stress for the complainant, I accept the evidence of the respondent that it was not an option to temporarily relocate social care workers, to other centres, as it would have a greater detrimental consequential impact on the service users on a temporary basis. It is noteworthy also that the employees’ work location is the home for the service users. I do not find, therefore, that a reasonable person would take the view that the period of temporary relocation was a detriment to the complainant and therefore I do not find that the complainant was penalised during this temporary period.  

On 11th October 2019 the complainant is advised of the final outcome of the investigation which determined that there is “no case to answer” for any parties to the complaint. It details that the “submission of the complaint has caused a breakdown of workplace relationship”, that Mr B does not want to engage in mediation and does not wish to work alongside the complainant. I note that Mr B was willing to relocate but this did not happen. The respondent outlined that they were left with no option but to make the complainant’s temporary relocation a permanent outcome.

As set out in Aidan & Henrietta McGrath Partnership v Monaghan PDD162, I am required to give “consideration of the motive or reasons which influenced the decision maker in imposing the impugned detriment.” The respondent submits that as it is more difficult to recruit Social Care Workers than Care Assistants and as the respondents’ role is to deliver high-quality services to the service users; there is a need for harmonious staff team dynamics. While this is credible and I recognise that the work location of employees is the home of service users, I find it more credible that that the complainant’s relocation is as set out in their letter of 11 October 2019, namely, the “submission of the complaint” which was the reason which influenced the respondent’s decision to relocate the complainant for the protected disclosure and which I find that a reasonable worker would find as a detriment. I find that ‘but for’ the protected disclosure, the complainant would not have been penalised by her relocation.

I find that the complaint is therefore well founded.

With regards to compensation, as set out in PDD201 Financial Services Union v Gerry Hanna, “redress for Contravention of Section 12(1)”, provides for an award of compensation which is just and equitable having regard to all the circumstances”. I have noted that the complainant has been employed with the respondent for over 5 years, commenced working in the specific area in March 2019 and that her loss of earnings when she was temporarily relocated for approximately 7 weeks was submitted as €409.05. I have also noted the impact that this instant complaint has had on the complainant resulting in her absence from work with anxiety. Having regard for all the circumstances I order the respondent to pay the complainant the award of €6,500 which I regard as just and equitable in all the circumstances.

I find the complaint is well founded and I order the respondent to pay the complainant the award of €6,500 which I regard as just and equitable in all the circumstances.

Protected disclosures