Complainant

Respondent

Parties

Ann  Holden

Brothers of Charity Southern Services Brothers of Charity Southern Services

Representatives

  Self-Represented

Sophie Crosbie 

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-00045106-001

07/07/2021

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

CA-00045106-002

07/07/2021

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

CA-00045106-003

07/07/2021

The Complainant worked for the Respondent as a professionally qualified registered Social Worker from February 2009. She claims that she submitted a number of protected disclosures under the Protected Disclosures Act 2014 (The Act) and that she was penalised by way of demotion, suspension and not being afforded fair procedures in her three respective complaints.

The Respondent denies that the Complainant made Protected Disclosures of any kind that demand the protection of the Act, and furthermore that she was never demoted and that the suspension with pay was unrelated completely to any alleged Protected Disclosure. The Respondent denies not affording the Complainant fair procedures during a disciplinary investigation.  

The Complainant’s evidence can be summarised as follows:

Protected Disclosures:

The Complainant made a Protected Disclosure under the Act to the Minister for Health and the Health Service Executive (HSE) Protected Disclosures Office on 13 May 2018. The Complainant produced evidence of receipt of complaint from the HSE and the Minister’s office. The Complainant did not give great detail on the actual disclosure, nor did she produce a copy of the Disclosure, other than to state that it concerned financial matters and dealt also with an allegation that service user’s money was used to buy a car, which he could not drive, as he had an intellectual disability. The Complainant also accepted that she had no evidence of financial impropriety nor was such an allegation being made.

A further disclosure was made by the Complainant to her line manager on 31 June 2020 where she disclosed that a service user may have been overcharged for services by over €60,000 because he was still paying for residential care despite being moved to community care. The Complainant accepted in direct evidence and in cross examination that she would have considered such a disclosure as a normal part of her work. No financial misappropriation was being alleged by the Complainant other than to suggest that it was negligent accounting of costs by the Respondent.

In or about 30 November 2020 the Complainant made the Respondent aware, through her line manager, that a woman who had been in a Magdalene Laundry had received an award but that the Respondent was unaware of the payment. The Complainant accepted, that again, there was no financial misappropriation, but the Complainant submits that here was negligence by the Respondent, in not having properly accounted for the money. The Complainant accepted that the money had been paid into the service users account, but that the Respondent had been unaware at the time of the transaction.

Penalisations:

CA-00045106–001 Demotion:

The Complainant submitted that the Respondent had effectively constructively dismissed her by suspension January 2021. However, she did accept that she was employed but believes that she has in effect been demoted in that her role has been supressed, and she feels that she has been lumbered with a heavier workload and that such constitutes demotion in that she no longer believes she has the responsibilities she had before she made the Protected Disclosures and that this effectual demotion was penalisation for making the disclosures.

CA-00045106-002: Suspension:

The Complainant alleged that she was suspended with pay for copying her solicitor on an alleged disciplinary charge levelled against her it related to not picking up a case with a family that was assigned to her. She was suspended with pay on 25 January 2021 and she remains on suspension, even during the period that the present hearing is taking place. She believes that the suspension and subsequent investigation were as a direct result of having made a protected disclosure.

CA-00045106-002: Not Afforded Fair Procedures.

The Complainant alleges that she has not been afforded fair procedures in an investigation of a spurious charge against her. The subsequent investigation was biased in favour of her line manager. The investigators did not consider her professional opinion and dismissed without consideration her legal submissions. She believes that this denial of fair procedures stems from her Protected Disclosures.

The Respondent disputes that any acts of penalisation have occurred in this instance. It does not accept that the information disclosed at the hearing falls within the definition of relevant information as set out in Section 5(2) of the Act. In particular, the Respondent submits that it is a section 38 organisation under the Health Acts and a registered charity is not a public body as defined by section 3 of the Act.

The Respondent submits that the Complainant has not been dismissed constructively or otherwise. Neither has she been demoted. The Complainant remains in employment as a social worker on her grade, with no reduction in pay or status.

The Respondent submits that the suspension of the Complainant with full pay was justified as part of the disciplinary procedures to facilitate the investigation of alleged gross misconduct by the Complainant which was completely unrelated to any purported disclosure by the Complainant, be it protected or otherwise.

The Respondent submits that the Complainant was afforded full and fair procedures in a disciplinary process, that is still ongoing, and that such a process has no connection to any purported disclosure made by the Complainant in the past.

Summary of the Evidence of the Human Resources Manager:

The Complainant submitted a number of grievances in 2019 and did not accept the findings of an internal investigator. An appeal hearing was conducted on 11 June 2020 and the outcome of the grievance appeal was communicated to the Complainant by letter dated 13 September 2021.

The Complainant was also herself the subject of two grievances by her line manager. These grievances were investigated, and the outcome of the grievance appeal was communicated to the Complainant by letter dated 13 September 2021. Both grievances against the Complainant were upheld.   The Complainant had a very disputatious relationship with her line manager and was constantly questioning the work allocated to her as well as challenging the line manager in regular email exchanges.

The witness was not aware, nor was the Respondent, at any stage of an alleged protected disclosure in 2018 with regard to financial matters. At no stage was the Respondent aware that any investigation either by an authorised person nor the HSE, had taken place.

The alleged disclosures of June 2020 and November 2020 with regard to financial issues affecting service users were not protected disclosures but issues that were brought to the attention of the Respondent in the normal course of the Complainants work. The witness accepted that the financial systems in such a large organisation can bureaucratic. Both issues were rectified but there was no issue of misappropriation of funds. The Complainant did not use the appropriate forms or procedures to flag such disclosures but rather they were referred to in normal email correspondence. The Line Manager is not an authorised person to submit Protected Disclosures under the Act.

An allegation to carry out a reasonable instruction has been investigated and dealt with in line with the Respondent’s disciplinary procedures. The Complainant refused to attend to a service user’s family crisis on 20 January 2021, as part of her work responsibility. She was instructed to take the case. She refused do so and also refused to ‘work under protest’. The Complainant was placed off work with pay from 25 January 2021. The matter was investigated by an independent third-party investigator who issued a report on 1 April 2020. The Complainant did not take the opportunity to reply to the report and still refuses to present herself for a disciplinary hearing.  

To succeed in the Complaints, the Complainant under the Protected Disclosures Act 2014 (The Act) must demonstrate:

that they made one or more Protected Disclosures

a)       that they suffered a detriment and

b)      That there is a causal link between a) and b)

I firstly have to determine if one or more protected disclosures were made. Section 5 of the Act gives guidance on what is a Protected Disclosure:

5. Protected Disclosures

(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,

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

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

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

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

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

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

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

(5) A matter is not a relevant wrongdoing if it is a matter which it is the function of the worker or the worker's employer to detect, investigate or prosecute and does not consist of or involve an act or omission on the part of the employer.

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

(7) Subject to subsection 7A, the motivation for making a disclosure is irrelevant to whether or not it is a protected disclosure.

(7A) Where a worker, referred to in subsection (1), makes a disclosure of relevant information in the manner specified by that subsection, and in respect of that disclosure of relevant information it is alleged that the disclosure concerned the unlawful acquisition, use or disclosure of a trade secret (within the meaning of the European Union (Protection of Trade Secrets) Regulations 2018 (S.I. No. 188 of 2018)), such disclosure is a protected disclosure provided that the worker has acted for the purposes of protecting the general public interest.

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

The Complainant stated that she made a Protected Disclosure in 2018 and exhibited acknowledgement letters from both the HSE in March 2018 and a further acknowledgement from the office of the Minister for Health, both referencing the Protected Disclosures Act 2014, and guaranteeing that the identification of the Complaint would be protected.  An issue arises with regard to the content of the complaint. When pressed on this at the hearing, I found the Complainant’s responses to be somewhat vague. She mentioned financial irregularities, the Garda Fraud Squad and an allegation of a service user’s car being purchased from his funds where the service user had an intellectual disability. The Complainant accepted that no evidence of wrongdoing was subsequently uncovered and that there was no misappropriation of funds. However, she submits she did reasonably believe at the time that some kind of offence had been committed.  The issue is complicated by the fact that the Respondent gave very plausible evidence of having no awareness of such a disclosure nor of an investigation taking place at the time. I find it odd that the Complainant did not produce a copy of the disclosure nor did she give any clarity on what she considered to be ‘relevant information’, however, on the balance of probabilities,, and taking account of the HSE and Minister for Health’s acknowledgement  letters at the time, I find that a Protected Disclosure under the Act was made by the Complainant in 2018.  

In evidence the Complainant accepted that the disclosures she made in June 2020, with regard to a service user being overcharged, and a disclosure in November 2020 with regard ex Magdalene Laundry service users bank account, were disclosures that she would be expected to make in the normal course of her employment. Cogent evidence was given by the Respondent witness that this was a glitch in accounting practice and no unlawful activity had occurred. The Complainant concurred on the point that there had been no misappropriation of funds. Uncontested evidence was given that in the latter two disclosures, the Complainant had not used any formal procedure, as she had done in her disclosure of 2018, but had referred to them in email or correspondence to her line manager.

Section 5(5) of the Act provides:

(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.

The appellant in the 2016 Labour Court case of Donegal County Council v. Liam Carr (PDD161) was employed by the respondent as Station Officer in the Retained Fire Service. The appellant submitted that he had made six separate protected disclosures to his Line Managers which were not addressed by the respondent. The appellant submitted that he suffered detriment in the form of undermining his position. It was argued by the appellant that this omission to address his concerns amounted to penalisation within the meaning of the Act. The respondent denied that there was a protected disclosure within the meaning of the Act, and if such a disclosure had been made, no penalty or detriment within the meaning of the Act was suffered by the appellant.

The Labour Court found:

The complaints which are alleged to be protected disclosures in the within case (a) could not reasonably be argued to be outside of the function of a Station Officer in the Fire Service to detect, and (b) relate to matters other than an alleged omission of the Employer. On a plain reading of the Act therefore the Court finds that the complaint made by the Appellant in this case is misconceived. The complaints made by the Appellant in pursuance of his duties as Station Officer were not Protected Disclosures within the meaning of the Act.

The Court, in light of its finding outlined above, is not required to consider whether a penalisation within the meaning of the Act has occurred.

It was common case in this instance that the purported disclosures in 2020 were within the ambit of the Complainant’s role to detect and investigate.  The issues raised were addressed and I note that the Complainant did not utilise any formal mechanism, of which she was aware, to raise such disclosures.  Therefore, I find that the Complainant’s disclosures in April and November 2020 were not Protected Disclosures within the meaning of the Act, as per section 5(5) of the Act and the guidance of the Labour Court in Donegal County Council.

Penalisation:

I have established that a Protected Disclosure under the Act was made in 2018. I must now examine whether acts of penalisation as alleged by the Complainant were made against her as a result of the Protected Disclosure.

Section 12(1) of the Act states:

 “…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.”

Allegations of penalisation:

CA-00045106: - Demotion

The Complainant had originally submitted that she was constructively dismissed but this was clearly misconceived as she still remains an employee without ever tending her resignation. Demotion as ordinarily defined in employment terms means a reduction in rank or status with the commiserate reduction in pay. Unequivocal evidence was given by the Respondent that the Complainant retains her grade, status and pay grade therefore I find that no penalisation occurred therefore the Complaint is not well founded.

The Complainant submitted in two complaints that a disciplinary process which was imitated against her was in retaliation for making protected disclosures, and that the penalisation consisted of suspension and not being afforded fair procedures, respectively.

The High Court case  Hosford v Department of Employment Affairs and Social Protection [2020] IEHC 138   highlights that the fact of having made a protected disclosure does not protect the employee from being disciplined for behaviours that would otherwise warrant disciplining.

Mr Hosford was subject to a disciplinary process in 2017 for alleged misconduct in which the allegations were upheld. He was given a final written warning for his behaviour, warning him to behave appropriately in future and respect his colleagues.

Mr Hosford took a claim to the Workplace Relations Commission (WRC) on the basis that the conduct of the disciplinary process amounted to penalisation for making protected disclosures. The WRC found against Mr Hosford and he appealed the decision to the Labour Court, who affirmed the decision of the WRC.

In reaching its decision, the Labour Court outlined that:

“The fact of a person having made a protected disclosure within the meaning of the Act of 2014 does not immunise the Appellant from a disciplinary response to behaviours which would ordinarily cause an employer to consider the initiation of such procedures provided such behaviours are not in themselves protected disclosures or arising in the course of making protected disclosures.”

Mr Hosford appealed on a point of law to the High Court. In dismissing the appeal, Justice Meenan found that the Labour Court afforded the appellant his right to fair procedures throughout and had a legally sound basis for reaching its determination.

CA-00045106-002: Suspension with Pay.

The Complainant submitted that her suspension with pay during an investigation of a charge of alleged gross misconduct against her, was in retaliation for making protected disclosures. I have established that the Complaint made a protected disclosure in 2018. Such is the length of the time between the Protected Disclosure and the alleged act of gross misconduct in 2021, that it would take very persuasive evidence to suggest a link between the two events. No such evidence was submitted by the Complainant to suggest that ‘but for’ her protected disclosure, she would not have been suspended with pay on what was clearly an unconnected event of alleged refusal to carry out her duties in 2021. The Respondent gave evidence that the suspension came about to allow an uninhibited external investigation. The Respondent gave evidence that sensitive client details were copied to the Complainant’s solicitor at the time and that the suspension was an imperative that was allowed for within the disciplinary procedures to protect the service user and the Respondent.  Convincing evidence was also given by the Respondent that the suspension period was elongated, not by any action of the Respondent, but as a direct result of the Complainant refusing to engage with the disciplinary process.  

Having heard all the evidence and submissions, I am satisfied that the suspension of the Complaint was within the scope of the Disciplinary Procedures of the Respondent for behaviour unconnected to the making of a Protected Disclosure therefore I conclude that no act of penalisation occurred. I find the complaint is not well founded.

CA-00045106-003 – Not afforded Fair Procedures.

The Complainant submitted that she was not afforded fair procedures during the 2021 disciplinary process and that this denial of fair procedures was penalisation for making protected disclosures. I have established that the Complainant made a Protected Disclosure in 2018. I concluded, also on the balance of probabilities that the Protected Disclosure cannot plausibly be interpreted as the reason why a disciplinary process imitated in a clearly unconnected allegation of gross misconduct in 2021. Furthermore, the Respondent submitted considerable evidence that during the investigation, which was carried out by an external investigator, the Complainant was afforded the right to representation, including legal representation if desired and a right to reply, which was not taken up by the Respondent.

Having heard all the evidence and submissions on this complaint, I am satisfied that the Complainant was afforded fair and reasonable procedures at the investigative stage in a disciplinary process, a process in itself which had no connection with a Protected Disclosure in 2018, and, therefore, that the claim of penalisation is not well founded.      

CA–00045106 -001: Schedule 2 of the Protected Disclosures Act 2014 requires that I make a decision under the Act. As outlined above, I conclude that here was no penalisation by way of demotion. Therefore, I find the complaint was not well founded.

CA-00045106-002: Schedule 2 of the Protected Disclosures Act 2014 requires that I make a decision under the Act. As outlined above I conclude that here was no penalisation by way of suspension during a disciplinary procedure. Therefore, I find the complaint was not well founded.

CA-00045106-003: Schedule 2 of the Protected Disclosures Act 2014 requires that I make a decision under the Act. As outlined above, I conclude that here was no penalisation by way of the Complainant not being afforded fair and proper procedures during a disciplinary process. Therefore, I find the complaint was not well founded.   

Health Act 2004, Protected Disclosures Act 2014, Penalisation, Amendment of Complaint.