Complainant

Respondent

Parties

Aisling  Murphy

Madigan's Pharmacy Kilkenny Limited

Representatives

South Leinster Citizens Information Service - Kilkenny Area

 Mason Hayes & Curran

Act

Complaint Reference No.

Date of Receipt

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

CA-00047222-001

17/11/2021

The complainant had less than one year’s service with the respondent at the time of her dismissal. She alleges that she was unfairly dismissed following the making of protected disclosures on 11 and 18 May 2021. The respondent contends that the correspondence of 11 and 18 May 2021 were not protected disclosures and that it lawfully terminated the complainant’s employment in accordance the contract of employment.

Evidence of the Complainant (on oath)

The complainant outlined that she commenced employment with the respondent on 1 September 2020. There was no induction. Ms Madigan, the owner of the pharmacy, attended the store a few hours per week. The complainant outlined that at no time did Ms Madigan bring issues of concern to the complainant’s attention. In fact the complainant thought everything was going well. The complainant outlined how it was normal and standard practice to leave notes in the pharmacy diary and that she did the same for the attention of Ms Madigan.

The complainant outlined that she was managing most things at the store and was on her own for most of the time. On that basis she met with the respondent on 4 December 2020 and requested that she be given the title of Supervising Pharmacist as she was doing that job anyway. The complainant repeated her request as she did not get an answer following the first meeting. At a second meeting the respondent told the complainant that they were happy with her performance, and they agreed to promote her to Supervising Pharmacist. Her salary was increased, and her hours of work were reduced.

On 4 May 2021 a note was left in the diary by Ms Madigan. A copy of this diary entry was opened at the hearing. This note was addressed to the complainant and requested that all SOS prescriptions be put through as phased. The claimant outlined how she was worried when she saw this note, as she had worked in 20 other stores as a locum, and she understood that phasing was not permitted under the Long-Term Illness Scheme (LTI) as it would result in the pharmacy incorrectly claiming four dispensing fees for each item dispensed under LTI. Under LTI patients can receive medication free of charge from a pharmacy. The pharmacy then submits the patient’s claim to the Primary Care Reimbursement Services (PCRS) section of the Health Services Executive (HSE). The pharmacy is permitted to claim the cost price of the drug plus a mark-up of 20% and a dispensing fee.

A text message dated 11 May 2021 was opened at the hearing. This message was sent from the complainant to Ms Madigan. It stated that the complainant had inquired into phased dispensing and only the General Medical Services Scheme (GMS)  was eligible for phasing and not the LTI. Therefore she would not be able to put through separate dispensing for LTI as it is not permitted by the PCRS. The complainant contended that the contents of that message was relevant information which was intended to bring Ms Madigan’s attention to something that the pharmacy was doing incorrectly. The complainant stated that Ms Madigan did not reply to her concern.

On 17 May 2021 Ms Madigan left another note for the complainant in the diary. It advised the complainant to “put through prescriptions in 7’s and forward date. It is not phasing, just dating for each week . . . . ”  On 18 May 2021 the complainant sent a text message to Ms Madigan to say that if she did put through prescriptions as 7 tabs on repeat and 4 dispensing dates as suggested, that would result in over claiming on the LTI dispensing fee, and that unless the PCRS confirmed that was ok to do this, the complainant was not comfortable putting through the claims in that way. Ms Madigan replied to say she would investigate it, but the complainant did not hear anything further from Ms Madigan in that regard. The complainant continued to put through prescriptions in the manner that she believed to be correct.

The complainant explained that at close of business on 1 June 2021, Mr Madigan came into the store, and, in front of another colleague, he advised the complainant that there was no easy way of saying what he had to say other than it was not working out and she was being dismissed. Ms Madigan was shocked and  felt humiliated in front of her colleague. The complainant stated that she had no reason to believe at any time that her performance was not to an acceptable standard. The notes in the diary related to good housekeeping and nothing else. Further these notes did not relate exclusively to the complainant. The respondent was always happy to leave the complainant working in the store. The complainant outlined that she had received no warnings and that she was shocked to learn of her dismissal. Following a data access request, the respondent confirmed that there were no records of any investigations or disciplinary issues on file for the complainant. The complainant stated that she believed her dismissal was the direct result of her emails of 11 and 18 May 2021 which were relevant information and protected disclosures.

During cross-examination the complainant accepted that if there was a mistake in the blister packs or accompanying documentation that she had put together then she was at fault for any errors arising therein. The complainant stated that she has no knowledge of any mistakes she made with the SOS or TPNH contracts and she did not know why the respondent lost the TPNH contract. In reply to whether she knew there was any problem with the SOS contracts, the complainant responded no and that she had no reason to believe that she personally was not doing a good job. In reply to what would she have done if the respondent refused her request for a promotion, the complainant answered that she would have left.

The complainant accepted that she took no responsibility for the failure to re-order medication for the child with cancer. It was put to the complainant that she had a considerable problem accepting responsibility, to which the complainant disagreed. The complainant responded that she could not have known that there were problems with her performance. It was put to the complainant that it was not possible that she could not have known that there were serious concerns as one major contract had already been lost and there were also issues with the SOS contract and that she couldn’t but have noticed the decline in business. It was put to the complainant that her perception of how the business was doing did not accord with reality. The complainant responded that she could not speak to this as the performance of the business were not brought to her attention.

The complainant confirmed that it is a GP who approves a prescription for phasing and not the pharmacy. The complainant accepted she had no issue with phasing per se. The complainant accepted that she contacted the PCRS to inquire about phasing for LTI, but she could not recall the date or who she spoke to, but PCRS and colleagues within the industry confirmed that it could not be done. When asked why she had not told Ms Madigan that she had spoken to PCRS, the complainant replied: “I was put in a very difficult position just to do it and on 17 May she put further pressure on me to do it”. The complainant accepted that her concerns regarding LTI was notified to the respondent on 11 and 18 May 2021 only. It was put to the complainant that her replacement was already secured before the 11 May 2021.

Written, Legal & Closing Arguments

The complainant was unfairly dismissed by the respondent owing to a disclosure made to the respondent, being a protected disclosure under section 5 of the Protected Disclosure Act 2014. The complainant was penalised in the workplace by way of termination of her employment, such penalisation being explicitly prohibited under s 3(1)(a) of the Protected Disclosure Act 2014. The termination of the complainant’s employment amounts to an unfair dismissal as it resulted ‘wholly or mainly’ from the protected disclosure made in line with the provisions set out under s 6(2)(ba) of the Unfair Dismissal Act 1977-2015. Generally an employee must have at least 52 weeks’ continuous service with the employer before they can claim unfair dismissal. There are exceptions to this requirement. Section 11(1)(c) of the 2014 provides for one such exception where an employee whose dismissal results from them having made a protected disclosure under the Protected Disclosures Act 2014. Where an employee has been dismissed, and there were no substantial grounds justifying the dismissal, within the meaning of the s 6(1) Unfair Dismissal Acts 1977 -2015, and where said dismissal resulted from the employee making a protected disclosure in relation to relevant wrongdoing, as set out under s 5(1) of the Protected Disclosures  Act 2014, the employee is eligible to redress inter alia of up to 260 weeks (5 years) remuneration in respect of the employment from which they were dismissed.

Representative for the complainant cited and discussed the following cases within the complainant’s written submission: Nolan v Fingal County Council [2022] IEHC 335; Dougan & Clark v Lifeline Ambulances Ltd [2018] 29 ELR 210; Aidan & Henrietta McGrath Partnership and Anna Monaghan (PDD162); and Complainant v Respondent (ADJ-00000456).

In closing, the representative for the complainant told the hearing that the complainant joined the pharmacy in good faith and was summarily dismissed following the making of a protected disclosure as defined under s 5 of the Protected Disclosure Act 2014. It is to be presumed that the giving of ‘relevant information’ is a protected disclosure and that this has not been rebutted by the respondent. It is not relevant whether the ‘relevant information’ is in fact a wrongdoing. The complainant made all efforts to ensure that the respondent got the phasing payments it was entitled to. At no time was the complainant told that there were issues with her performance and in fact she was promoted within 3 months. The fact that the respondent could have dismissed her at any time does not detract from the reality that she was only dismissed following the making of protected disclosures. She was promoted because they were happy with her performance. They were recruiting for a support pharmacist and not a replacement for the complainant.

Evidence of Ms Bernie Madigan (on oath)

Ms Madigan, a qualified pharmacist, opened the respondent pharmacy in 2020 and secured two important and valuable contracts which were critical to get the business up and running. One contract was for TPNH and the second for SOS and involved the filling of prescriptions for a total of 120 persons.

Ms Madigan worked two days at the pharmacy. A pharmacy technician and a shop assistant were also employed at the store. The complainant was recruited on a full-time basis as a Support Pharmacist on 1 September 2020 and worked five days per week. Ms Madigan detailed how it quickly became apparent that the complainant did not have the necessary experience for a new start up pharmacy. Ms Madigan highlighted her concerns to the complainant over the duration of the complainant’s employment; however, the complainant did not take the feedback seriously, and displayed no remorse for mistakes made. Errors included over stocking items which may then go out of date, or under stocking product including medicines. The respondent detailed an incident which occurred on 16 November 2020 were a particular medicine for a child with cancer which was on a repeat prescription had not been re-ordered resulting in the respondent having to source the medicine from a local hospital. The store was on occasion untidy, and stock incorrectly located and incorrectly priced. Further, SOS and TPNH highlighted several concerns regarding the service they were getting from the pharmacy including incorrect filling of prescriptions, billing issues and the accuracy of and the difficulty understanding the paperwork attached to blister packs for service users. The respondent invited the complainant’s views on how the store might increase business, but the complainant displayed no interest in business development and frequently reminded Ms Madigan that it was not her who had opened the pharmacy. Issues of concern were advised to the complainant orally and/or documented in a diary which was left for staff to read and learn from. The respondent detailed that although there was a Technician and Shop Assistant, ultimately the complainant was accountable for many of these issues.

In October 2020 the respondent began the process of sourcing a replacement for the complainant. Ms Madigan contacted colleagues within the industry and engaged the services of a pharmacist recruitment agency. Initial attempts to find a replacement were unsuccessful due to the impact of Covid-19 and the demands for pharmacists. Rather than close the store, the respondent continued with the complainant’s employment in the hope her performance would improve with time.

On 17 November 2020 the complainant requested to meet with the respondent. At the meeting she asked for a promotion to Supervising Pharmacist as the complainant felt she was doing this role anyway. Ms Madigan was shocked by the request given the performance issues she had highlighted to the complainant. The complainant followed up on this request again on 4 December 2020. Ms Madigan feared that she would lose the complainant if she did not agree to the promotion. The complainant was given a salary increase and her hours of work reduced from 45 to 36. Ms Madigan outlined that pharmacists were extremely difficult to source: it was the height of the pandemic, and the store would have to close without a pharmacist.

The respondent put the business up for sale in January 2021 as business was not increasing but was unsuccessful in finding a buyer. Ms Madigan continued to speak with the complainant about her concerns regarding stock provisions, and in relation to complaints from TPNH and SOS concerning the incorrect filling of prescriptions; inaccurate accompanying paperwork and billing issues. The respondent was very concerned for the reputation of the business. As feared, in April 2021 the respondent lost the TPNH contract as TPNH were unhappy with the service they were getting from the respondent.

There were also continuing issues with the SOS contract such as inaccurate paperwork accompanying the blister packs. In addition, the medication dispensed was not accurate. The respondent submitted a list of 19 separate incidents recorded in the pharmacy diary dating from 22 September 2020 to 28 May 2021 detailing the errors highlighted to the complainant and the staff within the store and submitted that these errors were having a significant impact on the business.

The respondent decided to contact an alternative recruitment agency to source a replacement for the complainant. On 22 April 2021 the recruitment agency sourced two qualified pharmacist candidates for the respondent’s consideration. On 3 May 2021 the respondent met with one of the candidates and agreed a trial day for 10 May 2021 at the Callen Store. At the end of that day, the respondent offered the candidate a full-time role as a Supervising Pharmacist at the Kilkenny pharmacy, to commence on 2 June 2021 when she had worked out her notice for her current employer. Also on 10 May 2021 the respondent advertised for a part-time pharmacist to provide cover for leave at both the Kilkenny and Callan stores.

The respondent opened two text messages dated 11 May and 18 May 2021 at the hearing.  Ms Madigan had heard from locum pharmacists that phased dispensing was permitted for the LTI drug scheme. On 11 May 2021 the complainant sent a text message to Ms Madigan to state that she had enquired into phased dispensing and that phased dispensing was permitted for the GMS drug scheme but not the LTI drug scheme and accordingly the complainant would not be able to put through separate dispensing for LTI. A text message was opened at the hearing showing Ms Madigan reply: “that is grand Aisling”. On 18 May 2021 the complainant again sent a text message to Ms Madigan to state that she would be uncomfortable putting through LTI claims as it would result in over claiming. Ms Madigan replied, “that’s fine Aisling, no problem at all, I’ll look into it”. Ms Madigan saw no issue with this text message, and it had no bearing whatever on the decision to dismiss the complainant. She did not regard it as wrongdoing but rather as an operational issue. Ms Madigan confirmed that the complainant was never instructed to phase prescriptions that were not authorised for same. The pharmacy was audited by the Primary Care Reimbursement Service (PCRS) and no concerns were identified. The respondent did not gain financially from using the scheme as it did for a limited period, as only patients approved for phasing were ever used, and the net amount remained the same regardless of what scheme was used.

On 1 June 2021 the respondent terminated the employment of the complainant on the grounds that she did not have the necessary skills or enthusiasm for a start-up pharmacy. Ms Madigan stated that the emails of 11 and 18 May 2021 had no bearing whatever on the complainant’s dismissal. A replacement had been secured for the complainant on 10 May, before either of the two emails which the complainant alleged were protected disclosures were sent to the respondent. The complainant was dismissed when her replacement was ready to commence employment with the respondent.

During cross-examination, Ms Madigan detailed the recruitment process for the complainant and accepted that the complainant did not have a line manager; that there was no induction process and no probationary reviews. Ms Madigan accepted that she had not spoken to the complainant about her performance and had noted her concerns in the pharmacy notebook only and that she had not conducted a formal review at any time with the complainant or utilised the disciplinary procedure. Ms Madigan submitted that she did not initiate the disciplinary process because the complainant would have left as the external demand for pharmacists was huge. Ms Madigan accepted as the owner of the pharmacy the responsibility for the TPNH and SOS contracts ultimately rested with her, but that the Supervising Pharmacist had a duty to look after the pharmacy. Ms Madigan accepted that any pharmacist could omit to order a medicine, but that the complainant displayed no remorse when the cancer medicine had not been reordered. In reply to whether a notebook, which was available for all staff to see was the appropriate place to record performance issues, Ms Madigan stated that it was the norm in the business to record concerns in that way so everyone could learn from them. Ms Madigan stated she now understands it was not appropriate to deal with performance concerns in that way. In reply to a question as to what her understanding of a protected disclosure was, Ms Madigan said she had never heard of the word previously, and that the messages  of 11 and 18 May 2021 did not concern wrongdoing in her view and that she would never ask a pharmacist to do something that was wrong. In reply to the question of whether she was surprised to read the message of the 11 May 2021, Ms Madigan replied no, as it was also her understanding that phased dispensing was permitted for the GMS drug scheme but not the LTI drug scheme.

In reply to what action did she take on foot of the complainant’s email of 18 May 2021, Ms Madigan stated she contacted PCRS who confirmed that phased dispensing was not permitted for LTI. Ms Madigan confirmed that she did not advise the complainant of that call with PCRS.

It was put to Ms Madigan that the advertisement of 10 May 2021 concerned a vacancy for a Support Pharmacist which was an additional hire rather than a pharmacist to replace the complainant and that the respondent had no intention of replacing the complainant until she made a protected disclosure. In reply, Ms Madigan stated she had no preference for either a support or supervising pharmacist. Rather she wanted a replacement for the complainant and either a support or supervising pharmacist would have done. A replacement was secured for the complainant on 10 May 2021, the day before the first email purporting to be a protected disclosure was even sent.

Written, Legal & Closing Arguments

The complainant had less than one year of service at the time of dismissal. The complainant was dismissed with pay in lieu of notice in accordance with the contract of employment. The phasing issue raised by the complainant was an operational issue and had no bearing on the decision to dismiss the complainant. At no time did the complainant describe the phasing issue as a protected disclosure until her claim was presented to the Workplace Relations Commission. The complainant did not make a valid disclosure of relevant information as defined by the Protected Disclosures Act 2014. The complainant is using this Act to bring her claim with the scope of the Unfair Dismissals Acts 1977 – 2015 as she does not have one year of service. The decision to dismiss the complainant was made on 10 May 2021 prior to the alleged protected disclosure.  The reason for the complainant’s dismissal was under performance. To be an unfair dismissal, it must result wholly or mainly from the employee having made a protected disclosure: it cannot be just incidental. Representative for the respondent cited Conway v The Department of Agriculture, Food and Marine [2020] IEHC 665 regarding the limits of the jurisdiction of an Adjudication Officer; A Commercialisation Specialist v A Government Agency (ADJ-0007228) in relation to the definition of a protected disclosure versus an expression of concern; McGrath Partnership v Monaghan PD/15/1/PDD62, O’Neill v Toni & Guy (Blackrock) Limited 92010 ELR 21, Solas v Patrick Wade PD/19/9 and Anne Fogerty v Tulsa & Family Agency, ADJ00034175 in relation to the ‘but for’ test. The respondent did not breach the Unfair Dismissals Act, however, on a technical point compensation under the Unfair Dismissals Act is restricted to loss. The complainant secured employment on 17 June 2021 and incurred no more than two weeks loss.

Law

Section 6(2) of the Unfair Dismissals Acts 1977 -2021 (“the Acts”) provides:

“Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal if it results wholly or mainly from one or more of the following: (ba) the employee having made a protected disclosure . . . .”

Section 1 of the Acts provides that a ‘protected disclosure’ has the meaning given by the Protected Disclosures Act 2014 (“the 2014 Act”).  An employee does not require one year’s service to fall within the scope of the Acts if dismissed for the making of a  protected  disclosure.

Under the 2014 Act a protected disclosure is a disclosure of ‘relevant information’ by a worker. Section 5(2) provides that information is ‘relevant information” for the purposes of the 2014 Act 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.  Section 5(3) of the 2014 Act lists what constitutes ‘relevant wrongdoings’ which includes at (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”. Protection under the 2014 Act remains available even if the information disclosed does not actually reveal wrongdoing.  Section 5(8) of the 2014 Act provides: “[i]n 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.” Section 6(1)(a) provides that a disclosure is made if the worker makes it to the worker’s employer. The 2014 Act clarifies that the compensation available for an unfair dismissal claim in the context of a protected disclosure is limited to financial loss attributable to the dismissal.

The disclosure must be a disclosure of ‘information’ and not simply an expression of a concern (see the UK case of Everett Financial Management Ltd v Murrell (EAT/552/02), (EAT/ 553/02), (EAT/952/02) referenced in A Commercialisation Specialist v A Government Agency, ADJ-0007228).  In Clarke v CGI Food Services Limited and CGI Holdings Limited [2020] IEHC 368 which concerned an appeal of a Circuit Order of interim relief under the Protected Disclosures Act 2014, the High Court found information to be a protected disclosure on the basis that it was “sufficiently informational in nature and not merely allegations unharnessed from any factual point ” (per Humphrey J at [22]). In the UK Court of Appeal decision of Kilraine v London Borough of Wandsworth [2018] EWCA Civ 1436), the Court stated that the information must be of sufficient factual content and specificity such as is capable of tending to show wrongdoing. Further, whether a disclosure in any particular case does meet that standard will be a matter for evaluative judgment by a tribunal in the light of all the facts of the case.

Findings

This is a complaint of unfair dismissal under s 8 of the Unfair Dismissals Act 1977 – 2015 (“the Acts”). The complainant does not have 12 months service. The complainant accepted in cross-examination that the alleged protected disclosures are confined to the dates of 11 and 18 May 2021. I must first ascertain whether the correspondence sent by the complainant to the respondent on one or both dates were protected disclosures as defined under the 2014 Act. It is only if the existence of a protected disclosure is established must I then go on to consider whether the dismissal of the complainant was wholly or mainly due to her having made a protected disclosure.

On 4 May 2021 the respondent requested the complainant to put through all SOS (which included patients approved for LTI and GMS schemes) as phased. This instruction arose following the respondent’s observation that a particular patient had not been phased despite being approved for same. Also, in examination-in-chief, Ms Madigan submitted that she had heard from locum pharmacists that phased dispensing was permitted for the LTI drug scheme.

It is the complainant’s evidence that this instruction of 4 May 2021 caused her concern as she understood that phasing was not permitted under LTI as it would result in the pharmacy incorrectly claiming for dispensing fees from PCRS/HSE that it was not entitled to. The complainant submitted that she then discussed the matter with several colleagues before concluding that phasing was not permitted for LTI. I accept that the complainant conducted these enquiries amongst her peers and that this then led to the complainant on 11 May 2021 sending a text message to the respondent stating: “ . . . I also had a look into phased dispensing. Was a bit concerned because I hadn’t seen it done before. Only GMS is eligible for the phasing, not LTI so wouldn’t be able to put through separate dispensing for LTI if they don’t allow it”. The respondent acknowledged this communication. By email on 18 May 2021 the complainant was instructed by the respondent to put through prescriptions in a manner, which the respondent stated was not phasing, but which the complainant again expressed concern would result in over claiming. The respondent again indicated no difficulty with the complainant’s text message and agreed to investigate the matter.

The complainant contends that the text messages of 11 and 18 May 2021 were both protected disclosures. It is the respondent’s case that the complainant did not make a protected disclosure either on 11 or 18 May 2021. Rather the respondent contends that the complainant had merely highlighted a concern regarding phasing for LTI and, given that phasing was permitted, and the complainant had no difficultly with phasing per se, it was just merely a question of the correct scheme to use. This, the respondent contends, was just an operational issue.

I find that both text messages of 11 and 18 May 2021 constitute protected disclosures within the meaning of the 2014 Act for the following reasons. Both text messages were sent to the employer, disclosing information which in the reasonable belief of the complainant tended to show a wrongdoing under s 5(3)(f), i.e., that an improper use of funds or resources of a public body was likely to occur, which had come to the attention of the complainant in connection with her employment. I do not accept the respondent’s contention that the information shared on 11 and 18 May 2021 were limited to mere operational issues. The fact that information might also be considered an operational issue, does not preclude it from being a protected disclosure. Nor do I accept that the information shared on 11 and 18 May 2021 were mere expressions of concern. The complainant was concerned that claiming for LTI was wrong and went to the effort of seeking the views of her peers. The information contained within her text message of 18 May 2021 again highlights the extent of the complainant’s concern: if she was to put prescriptions through in the manner requested “. . . we’ll end up over claiming on the LTI dispensing fee . . . [i]f we can confirm with the PCRS that’s acceptable, I can do it but otherwise I wouldn’t be comfortable putting through claims like that”. Such was the complainant’s concern of wrongdoing that she refused to do it without the express authorisation of the PCRS. In cross-examination in reply to the question of whether she was surprised to read the message of the 11 May 2021, Ms Madigan replied no, as it was also her understanding that phased dispensing was permitted for the GMS drug scheme but not the LTI drug scheme. The respondent too knew that claiming in the proposed manner may have been wrong. I am satisfied that the complainant highlighted to her employer what she reasonably believed was potential wrongdoing in so far as improper use of funds or resources of a public body was likely to occur and the complainant’s drawing attention to that on 11 and 18 May 2021 was the making of protected disclosures for the purposes of the 2014 Act.

The respondent submitted that at no time did the complainant describe the phasing issue as a protected disclosure until her claim was presented to the Workplace Relations Commission. The respondent further argued that the complainant was using the 2014 Act to bring her claim with the scope of the Unfair Dismissals Acts 1977 – 2015 as she did not have one year’s service at the time of her dismissal. In Clarke the defendant submitted that the plaintiff had attempted to retrospectively characterise matters as protected disclosures to avail of the protection provided by s 11 of the 2014 Act. This was rejected by the High Court: “[o]ne can make a protected disclosure without invoking the 2014 Act or without using the language of “protected disclosure”. It is often only after the victimisation, dismissal or other adverse consequence arrives that one has to “retrospectively” figure out what really happened and analyse it in the statutory language. There is nothing wrong with that process and it is certainly different from “retrospectively” creating a case from nothing” (per Humphreys J at [17]). Considering this decision of the High Court, an employee need not expressly invoke the 2014 Act when making the communication in question for it to be recognised as a protected disclosure. I find therefore that there was no requirement on the complainant to characterise her communications of 11 and 18 May 2021 as ‘protected disclosures’.

I have determined that the complainant made a protected disclosure within the meaning of the 2014 Act. I must now ascertain whether the complainant’s dismissal arose “wholly or mainly” from making those protected disclosures. As noted above, s 6(2)(ba) of the Acts provide that the dismissal of an employee shall be deemed to be an unfair dismissal if it results wholly or mainly from the employee having made a protected disclosure. Dismissal is not in dispute in this case. It is the complainant’s case that she was completely unaware of any performance concerns. It is the respondent’s case that it repeatedly highlighted to the complainant short-comings in her performance, albeit via the pharmacy diary, and that she was dismissed because of these short-comings. It is common case that the complainant did not receive any formal performance reviews or informal or formal disciplinary warnings.

In Clarke, the employer claimed that the dismissal of the plaintiff was due to performance issues. The High Court noted: “. . . decision-makers have to be alive as to how relatively easy it is to remove somebody from a position for ostensibly plausible reasons. On the other side of the equation, it is possible for someone who is dismissed for legitimate reasons to claim that removal was due to some improper purpose . . . [t]he upshot really is that the court must look beyond mere face value on either side” (per Humphrey J at [19]). It is for the complainant to prove that there is a causal connection between her making a protected disclosure and her dismissal. I find that the complainant has not discharged that burden for the following reasons.

The respondent submitted numerous examples of performance issues which were captured in the pharmacy diary and opened at the hearing. Many of these concerned matters which were the responsibility of the complainant. I find that there is no doubt that the respondent was concerned about the performance of the complainant from a very early stage in the employment relationship and for the duration of the complainant’s employment with the respondent. I accept the submission of the respondent that the complainant may have left its employment had the respondent commenced a performance improvement process and that the respondent could not risk the complainant leaving as pharmacists could not be sourced due to Covid-19 and it would certainly have required the closing of the pharmacy.

I do not accept the complainant’s submission that she had no reason to believe that she was not doing a good job. I do not accept the complainant’s submission that she was not made aware of or did not know that there were concerns regarding her performance. I accept that no formal performance reviews were conducted, and the performance issues were not dealt with under the disciplinary procedure; however, they were brought to the attention of the complainant via the pharmacy diary. Further, there were only two significant customers, and one ceased its business with the pharmacy due to its dissatisfaction with the standard of service it was receiving from the pharmacy. The complainant’s sworn evidence was that she “was managing most things at the store”. I find it incredulous that the complainant as the Supervising Pharmacist did not ask why the contract was lost, or even consider that the loss of the contract may have been due to errors emanating from the pharmacy that she had responsibility for supervising. It was put to the complainant that her perception of how the business was doing did not accord with reality. I agree, and I add that the complainant’s perception of her work performance did not accord with reality either. I find that the complainant had a particular difficulty with the business development side of her role, despite her contract including “[s]trive to grow the business . . .” as one of her listed tasks. I accept that the complainant was promoted to retain her in employment rather than as a reward for her performance. It was acknowledged in the complainant’s written submission “. . . the hesitation from her employers . . . ” in approving this promotion.

I accept that the advertisement of 11 May 2021 which read: “Part time Support Pharmacist at Madigan’s Pharmacy Callan & Kilkenny” was intended as cover for both respondent stores and not as a replacement for the complainant. I accept the respondent’s chronology of events that a replacement was secured for the complainant by 10 May 2021, which predates the complainant’s first protected disclosure. Further, I accept the submission of the respondent that following the loss of the TPNH contract, it was clear that the business would not be viable unless the respondent sourced another pharmacist to replace the complainant. This sourcing or recruitment process which had commenced as early as October 2020, was resumed in earnest in April 2021 following the loss of the TPNH contract, and well before the protected disclosures were made known to the respondent.

I find that the provisions of the Unfair Dismissals Acts 1977-2015 do not apply to the complainant as she has less than one year’s continuous service with the employer and was not dismissed wholly or mainly for the making of a protected disclosure. Therefore, I have no jurisdiction to hear the substantive matter of the case and award redress under s 8 of the Unfair Dismissals Acts 1977-2015.

I have no jurisdiction to hear the substantive matter of the case and award redress under s 8 of the Unfair Dismissals Acts 1977-2015.

Protected disclosure. Less than one year of service. Dismissal.