FULL RECOMMENDATION
PARTIES : OAKLODGE FOSTERING LTD DIVISION :
SUBJECT: 1.Appeal of Adjudication Officer Decision No(S) ADJ-00019117 CA-00024996-003 Background The Complainant commenced employment with the Respondent as a Placement Support Worker on the 6thJuly 2014 and resigned her employment in circumstances she claimed amounted to constructive dismissal on 3rd November 2018. The Complainant worked 14 hours a week over two days and her hourly rate was €22. The Complainant submits that she made a protected disclosure and that she was penalised for doing same. The Respondent disputes that a protected disclosure was made and or that she was penalised. The Complainant lodged her complaint with the WRC on the 14thJanuary 2019. The cognisable period under the Act is 15thJune 2018 to 14thJanuary 2019 Summary of the Complainant’s submission and evidence. In September 2017 the Complainant returned to work following a period of Maternity leave. Shortly after her return there was a HIQA inspection which identified a number of issues that needed to be rectified. The Respondent undertook to assign a Quality Control Manager to assist with addressing the concerns. The Complainant in her evidence submitted that she made a protected disclosure to her supervisor Dr Bankes at a meeting she had with him, at his house at 2.00pm on the 27thApril 2018. It was her evidence that she asked to meet with him and was driven to the meeting by her husband. In support of her contention that she had such a meeting she submitted a photocopy of the relevant page from her diary which contained some scribbled notes. It was the Complainant’s evidence that she made the following protected disclosures; that in respect of Supervision the requirements for same were being ignored, placements were ending, Oaklodge were neglecting the foster carers and that there were implications in terms of health and safety and that the Respondent was not providing high level support on an as and when needed basis. It was the Complainant’s evidence that she never received minutes of the meeting and she did not know if Dr Bankes took minutes. In response to questions under cross examination the Complainant stated that she did not accept that it was normal practise in supervision meetings with Dr Bankes for the person receiving the supervision to take notes then forward them to Dr Bankes. The Complainant accepted that there were no minutes of the meeting on the 27thApril 2018. It was put to the Complainant that Dr Bankes disputed the meeting ever took place. It was the Complainant’s evidence that it did. The Complainant was asked why she did not raise her concerns at a team meeting prior to the 27thApril 2018. It was the Complainant’s evidence that she did not think the issues were relevant to raise at a team meeting. It was put to the Complainant that the issues she is alleging she raised at the meeting on the 27thApril 2018 were known to management and staff as they had been raised by HIQA in January 2018. The Complainant accepted that HIQA had raised these issues and that the issues were discussed at team meetings prior to April 2018. In response to a question from her Representative the Complainant stated she felt they were a protected disclosure because she was talking about other members of staff. The next witness for the Complainant was Mr Kirwan the Complainant’s husband DrBankes car. It was his evidence that he was not present at the meeting. Mr Asmussen BL on behalf of the Complainant submitted that the Complainant had made a protected disclosure and that she had been penalised by being put through a disciplinary procedure and having her wages cut in half. Summary of the Respondent’s submission and evidence. It is the Respondent’s submission that the Complainant did not make a protected disclosure. The issues she referenced were raised by HIQA in January 2018 and the organisation was working on addressing the issues. A copy of the Respondent’s Action Plan on foot of the HIQA report was submitted by the Respondent in support of their position. Dr Bankes Director of Oaklodge Fostering Limited gave evidence that he did not recall a meeting in his house with the Complainant on the date stated. Dr Bankes acknowledged that from time-to-time staff would call to his house and he did not dispute that Mr Kirwan fixed his car but he did not believe that it was on the 27thApril 2018. It is Dr Bankes evidence that when he did Supervision meetings the person receiving the supervision would normally draft a minute of the meeting which they would then both agree. The fact that this did not happen on this occasion reinforces his belief that the meeting as alleged did not occur. It is his evidence that the issues alleged to have been raised at that meeting were common knowledge within the organisation at the time having first been raised in January 2018 by HIQA. Dr Bankes disputed that the Complainant was penalised and submitted that the disciplinary sanction arose from a complaint made against the Complainant. The law Protected disclosures 5.(1) For the purposes of this Act “protected disclosure” means, subject to subsections (6) and (7A) andsections 17and18, 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 insection 6,7,8,9or10. (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. Discussion Having carefully considered the submissions of the parties and the oral evidence presented the Court is of the view that the Complainant did not disclose relevant information. The information the Complainant is seeking to rely on was common knowledge within the Respondent’s organisation at the time she alleges she disclosed it. On that basis the Court determines that the Complainant did not make a protected disclosure. The Complainant’s appeal fails. The decision of the Adjudication Officer is upheld. The Court so determines.
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