Complainant

Respondent

Parties

Gerard  Foy

Health Service Executive

Complainant

Respondent

Anonymised Parties

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Representatives

Donnacha Morgan BL instructed by   Sean Ormonde & Co., Solicitors

Eva Hayes Health Service Executive, Intellectual Disability Residential Services

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-00050870-001

26/05/2022

Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005

CA-00050870-002

26/05/2022

The complainant submits that he was penalised for making a protected disclosure and penalised for making a safety health and welfare protected act.

The complainant submitted that the complainant was relying on the same facts regarding complaint  CA-00050870-001 and CA-00050870-002 and that they were complaints under different legislation.  The Complainant commenced his employment at one of the Respondent’s residential care facilities in or around March 2015.   The Complainant is a fully qualified and experienced nurse, who qualified in 1992 and has extensive experience in nursing patients with intellectual special needs. The Complainant was employed as an Agency worker who was paid via his Agency on a weekly basis. The Complainant is paid a gross wage of €1845.99 per week (€1209.98 net).  The Complainant was transferred to another Community House in December 2019. The Complainant had no written terms of employment with the Respondent, but did have a contract with the agency and while not contracted to work a specific number of hours per week, his average working week was 48 hours per week and worked on a shift basis.

Around 21/04/2020 the Complainant witnessed an assault on a resident at the facility by a colleague Ms A who was in the employment of the respondent when Ms A poured water over a resident. On foot of same, the Complainant reported the incident to Ms B the CNM 2, who in turn informed the Regional Director of Nursing, Eva Hayes. It is the position of the Complainant that the report constituted a Protected Disclosure as per the 2014 Act and having witnessed the incident took it very seriously.  The Complainant was advised that had he been a direct employee of the HSE, or had it been witnessed by a direct employee of the HSE, the incident would not have been reported. This understandably stayed with the Complainant.  At all material times hereto, the Complainant followed all appropriate procedures. The Complainant understood, thereafter, that an investigation took place, and that Ms A was reassigned to a different community house and continued to report directly to Ms B, whom it was submitted was also Ms A’s friend professionally and personally.

Subsequently, when the Complainant and Ms A came into contact at work again, Ms A ignored the Complainant which made him uncomfortable. He called her aside to speak to her and asked her what had changed since the incident. The Complainant felt that at the time of reporting that he was merely doing his duty. Ms A apologised to the Complainant at the time of the incident for having put him in the position of having to report the incident at all. She informed the Complainant she had seen the report he had made. The Complainant asked her who had shown her the report, she declined to answer and said the conversation was finished.

The Complainant admitted at the time and maintains that he had shown his written report to two colleagues. Ms Hayes was sent a copy of the report as she was the designated person to investigate the incident. The Complainant had also shown the report as part of the shift handover process to two incoming night duty staff that evening, one of which is a friend of the reported colleague.  After making the initial complaint, the Complainant felt unsupported by management and wrote to Ms Hayes who was the designated person dealing with their investigation to highlight this.

In response to his letter, Ms Hayes scheduled a meeting for 09/10/2020 and the Complainant attended. At the meeting, he was informed he could have brought someone with him. This came as a surprise to the Complainant as it was the first time, he was made aware of this. He informed Ms Hayes that he had been offered no support by management including herself. This was not received well by Ms Hayes. She confronted him having been informed by Ms A that he had shown his written report to work colleagues. Ms Hayes also told the Complainant that the report had been shown to the reported colleague. The Complainant queried whether that had been necessary but it was confirmed it was and was a part of the investigation. The Complainant admitted having shown other colleagues the report, in his mind he had to, it was a part of the handover process. Ms Hayes made it clear he should not have done this, which the Complainant acknowledged, and for which he apologized.

It is the Complainant’s belief at this point that he was made to feel as if he was the individual under investigation rather than Ms A whom he witnessed carry out an assault on a resident. The Complainant received minutes from the said meeting on the 06/11/2020, 4 weeks after the initial meeting. The Complainant addressed inconsistencies in the minutes of the meeting with a follow up email dated 10/11/2020. On the 26/01/2021 the Complainant received an email from Ms Hayes enquiring if an apology had been made to the colleague in question for having shown colleagues the report. Ms Hayes said she had been advised previously by the Complainant that this would happen. The Complainant advised Ms Hayes in an email dated 27/01/2021 that an apology had never been discussed and was not included in any of the documentation between Ms Hayes and the Complainant. The Complainant was left bewildered as to how Ms Hayes could have thought the Complainant would be apologising and Ms Hayes advised the Complainant that in order for the matter to go no further, he would have to apologize. The Complainant, out of fear that he would not get any further work from the Respondent going forward, wrote a letter of apology dated 21/01/2021.  The apology was reduced to writing in circumstances where the employee in question would not engage with him. The Complainant’s mental health was beginning to deteriorate at this point as the whole incident and what developed thereafter with Ms Hayes had left him feeling mentally drained and exhausted.

During the meeting Ms Hayes outlined she wanted the Complainant to complete other tasks in relation to safeguarding vulnerable adults and stated she would personally monitor his progress bearing in mind he was an agency nurse and not an employee of the HSE. These also included training in GDPR and open disclosure. This appeared odd to the Complainant as he was not under investigation. She informed him that the issue in relation to his initial complaint of 21/04/2020 would be taken no further. The Complainant was surprised at the outcome of the meeting, as he had initiated contact with Ms Hayes on the basis that he had received no support from management in relation to his initial disclosure and it was the Complainant’s belief that the narrative created during the meeting was to make him feel as if he was under investigation.

To the best of the Complainant’s knowledge, an investigation of sorts took place however as the Complainant, he was not in any form included, kept up to date with the progression of same, passed any report detailing the investigation and/or its outcome. The Complainant was not advised whether the employee in question was disciplined or spoken to in any manner, nor was he informed of what steps were taken in relation to the assaulted party to this complaint. The Complainant did come to learn, although not communicated to him directly that Ms A had been reassigned to another house of the Respondent. This is the best indication that the Complainant can give of the outcome of the investigation.

Further correspondence occurred between Ms Hayes and the complainant following a meeting around 09/10/2020. Ms Hayes had requested the complainant refamiliarize himself with National Policy & Procedure and the complainant responded identifying inaccuracies in Ms Hayes record of the meeting on 09/10/2020.

In February 2020, the Complainant unsuccessfully applied for a permanent CNM2 position with the respondent. Ms Hayes was on the panel for this interview and the minimum threshold in any competency area is 40%. Should an applicant go below that, then an applicant is disqualified entirely from the application process. To the Complainant’s surprise, the Complainant was marked at 36 for Experience relevant to the role and was thus excluded from the competition. This was despite the Complainant having worked from 2002 to 2007 as a CNM2.  In the weeks and months that followed, the Complainant’s unsuccessful application, the Complainant’s hours and working conditions were the subject of regular and unwarranted interference by some HSE staff. The Complainant had to take it upon himself to rectify this situation through interaction with his CNM2. Such interferences included hours being taken from him and being assigned to two other colleagues on the basis that they were HSE employees and entitled to the hours. Further, the Complainant was denied the option to work in locations as hours were not made available to him. The Complainant queried this and was informed by Ms C, manager, that the reported colleague had requested that this be the case and the Complainant be kept away from her throughout the course of her work, an instruction facilitated by Senior Management.

It was submitted as bizarre that the Complainant, who did nothing wrong and did what a reasonable person would do and what a reasonable employer would expect of a healthcare professional, has been punished for such an action. This has included been scolded for reporting the matter, made to apologise to a person whom he saw assault a service user, subjected to training for having breached GDPR guidelines, excluded from the investigation process as relates to his own complaint, been excluded as one of 2 witnesses to the event, had relevant experience disregarded as part of a job interview in which Ms Hayes was on the panel;  excluded from a panel which he should be on, had hours of work taken, refused hours in alternative houses; and now advised he would be kept away from HSE staff and those which he complained about as if he is the wrong that has done wrong.

In January and February 2022, less senior permanent Staff Nurse positions became available. The complainant applied and was called for interview on 21/01/2022 and the Complainant received notification in February 2022 that he had been unsuccessful in his application.  The Complainant appealed the decision and until 20/04/2022, the Complainant had heard nothing in relation to his appeal and had received no contact or correspondence in relation to same, the outcome of which remained unchanged.  The Complainant understands that the individuals awarded the permanent positions were nurses newly qualified and inexperienced. Around 18/05/2022 the complainant wrote to Ms C alleging that another colleague had engaged in continuing bullying behaviour and that management had failed to address the issue adequately or at all. The complainant highlighted that this had been going on for a number of months, having first occurred in March 2022 and remained unchallenged. This was never addressed by the Respondent and the failure on the part of the Respondent to consider the Complainant for the permanent Staff Nurse position after already excluding him from the CNM2 position panel, combined with the failure of the Respondent to engage with the Complainant in any meaningful way regarding his April 2022 bullying complaint tells the Complainant that the powers that be will not allow the Complainant to secure a permanent position with the Respondent. The Complainant is adamant that this attitude from the Respondent towards him all strings from his initial Protected Disclosure complaint. The above mentioned combined with the litany of penalisations satisfies that burden upon the Complainant.

It is the belief of the Complainant that reporting the initial incident in April 2020 has been detrimental to his professional good standing and professional progression. It is the Complainant’s belief that he has been victimized for reporting the incident in the first place. The Complainant contends he has been isolated, bullied, victimized, and punished by way of reduced hours at times, interference with scheduled work, changed working schedules, potential transfers to other sections and also and perhaps most notably in relation to his failure to gain a permanent position despite being the most senior suitable candidate available to the Respondent.

It was submitted that as an agency worker the complainant meets the definition of the “worker” as defined in the 2014 Act.  Case reference included Nolan v Fingal County Council [2022] IEHC335, A Psychiatrist v a Health Service Provider ADJ-00017774.  It was submitted that a disclosure is a protected disclosure until the contrary is proved and that the conduct of the colleague as alleged in the Complainant’s complaint of April 2020 constitutes a “relevant wrongdoing” within the meaning of the 2014 act. Furthermore, it is submitted that having witnessed same, the Complainant was entitled to make the complaint.  The complainant had entitlements without fear of penalisation or detriment to himself.  It is submitted that the Respondent failed in its duty not to pursue his complaint and that the act or omissions reported by the Complainant in April 2020 constitute “relevant Wrongdoing” within the meaning of section 5 of the Act of 2014.

The evidence of Mr Foy was that he qualified in 1992 and was witness to an assault of a resident and contacted the CNM2 and informed her in April 2020 and that she replied that she supposed she would have to report it and a report was requested and submitted.  He saw Ms A pour water over a the head of a resident.  He said he informed a staff nurse what had occurred as he thought that they should be told and that this staff nurse may have told someone else.  He wondered if any action had ever been taken about Ms A the person who assaulted the resident and that he was never interviewed about what had happened.  It was his belief that the assault was put on the back burner and he thought he was invited to a meeting for support and found it was more about what he had done with GDPR and that he was told he had broken GDPR.  He was told that if he had been a HSE worker then the incident would not have been reported.  It was agreed that an online GDPR and safeguarding course would take place.  He said that thereafter he experienced negative interactions and that the person who assaulted the resident asked that the complainant not work with her and that the complainant missed out on shifts because of this. 

He was moved to another area and one time when he worked with Ms A, she ignored him and when he asked what had changed, she said that he had reported her.  The complainant said that he was ignored by people and that it was his belief that people were talking about him behind his back but that he had no issue working with the individual who did not want to work with him.  He said that he was often not given the premium shifts and that he found out in Feb/March 2022 that he did not get the job of staff nurse and that a week later his roster changed and that his shifts were given to a different employee.

The complainant said he applied for CNM2 and did well in 4 sections but was unsuccessful and it was mentioned that he did not fill out a piece about experience and that he did not elaborate on another apart of the application form.  He confirmed that the interview and result was issued before the incident of April 2020. It was his evidence that he is a person who says what they see and people maybe do not like it and that it was detrimental to him as he spoke up about an incident that he saw and that other employees would not have reported it and he was viewed as a trouble maker.  He found it hard to believe that it could be said that he lacked experience.

Under cross examination Mr Foy confirmed that he reported the incident with Ms A in April 2020 and that he showed the report to two people at handover.  He confirmed that he received an interview pack setting out the details of how the interview that he was going to would be conducted.  He outlined that he was surprised that he was not interviewed regarding what he had observed with Ms A and the client.  When asked about what evidence he had about not getting shifts when he came back on duty, he said there were given to another nurse and no reason was given as he was no longer getting those shifts.  He confirmed that he had said he was not available on a Monday and a Friday and that this was known and agreed.

The complainant works as an Agency staff Nurse in Intellectual Disability Residential Services and has been based in residential houses as a Staff nurse. It was submitted that an incident arose at a residential house on 21/04/2020 where an employee, Ms A, acted inappropriately in their duty of care to a resident and the complainant, the Nurse on Duty at the time reported the matter to the CNM Ms B who referred the matter to the Regional Director of Nursing.  The resident was given relevant and necessary support, preliminary screening was conducted under the appropriate policies, HIQA were informed and the matter dealt with through the disciplinary procedures.  The complainant submitted that he was not made aware of the outcome and that no investigation was conducted and this is not a matter for the complainant as any disciplinary matter is confidential.

At the time the complainant shared his statement with a colleague which was breach of GDPR and meetings were held with the complainant, a course of remedy agreed and the complainant acknowledged that he should not have shared the report.  It was submitted that the complainant took the appropriate action as was his duty in line with the respondent’s policy to report all such incidents.  He submits that he was penalised for reporting the incident resulting in him not being successful in the competition of Staff nurse which he appealed and a review of his interview notes took place and the decision of the interview board was upheld and he was advised that he could request a personal review but did not take this matter to the next stage.  The complainant also applied for the position of CNM2 in 2020 and was unsuccessful and the complainant appealed this also.  It was denied that the complainant was penalised for reporting a protected disclosure.  He performed his duty and the respondent addressed the matter appropriately. 

Evidence of Ms Hayes was that in April 2020 a safe guarding incident was reported and Mr Foy gave her the facts and that she reassured him that he had done the right thing communicating to her and that he did everything he should have done and the resident involved was safe guarded and the person involved left that shift.  She said that such matters are privy to the staff and that there is a zero-tolerance approach and disciplinary may arise.  She said it appeared that the relationship was breaking down and a meeting about the relationships occurred and that her belief was that it was an open meeting.  She said Mr Foy acknowledge that he should not have shared the report and that training was discussed and options explored and that they talked about supporting staff and that she felt it was very positive and that Mr Foy said the info should not have been shared.  She said that she would never make someone apologise and that her memory of the meeting was that it was open.  She said that the complainant was requested to give alternative examples during the interview.  She said that there are rolling rosters in place.

Under cross examination Ms Hayes said Mr Foy did the right thing and that the people who should have known about the incident did know.  She said on the date of the incident she got a chronological report and there may have been a phone call.  She did not know if there was a follow up conversation but that others would have followed up.  She said as it involved other people he would not have been involved.  She said the meeting of 09/10/20 was a meeting and not a follow up meeting and that she did not say to Mr Foy to bring someone.  She believed it was a forum to discuss where things were going.  She confirmed that she took minutes and that he was not told he could bring someone and that she was trying to ascertain if this had been a breach of GDPR.  She said it was not her intention to ambush and that the complainant advised that he was struggling with relationships.  She denied that Mr Foy became the bad guy and she thinks she explained about GDPR and that he said he felt under pressure to share the report and that it was regrettable and that she did not sit on the interview panel when he sought a staff nurse position.  She did not believe it was reasonable to assume his roster was altered or that he was unsuccessful in his job application as a result and that agency nurses are used when there is a shortage of respondent staff and after the recruitment process there were respondent staff available to take shifts.

The complainant witnessed a distressing incident of abuse against a resident by an employee of the respondent on 21/04/2020 and reported this incident and that this constituted a protected disclosure and that as a result of the protected disclosure the complainant has been penalised and but for the protected disclosure he would not have been penalised.  The respondent agreed that a protected disclosure had been made and that the worker is a “worker” as defined under the Act but denies that there was penalisation as a result of the protected disclosure.  The penalisation which the complainant submitted had occurred included :

scolded for reporting incident with Ms A during handover,

made to apologise to a person whom he saw assault a service user,

subjected to training for having breached GDPR guidelines,

excluded from the investigation process as relates to his own complaint,

excluded as one of two witnesses to the event,

relevant experience disregarded for position of CNM2 role,

deemed unsuitable for the role of Staff Nurse,

hours of work taken,

refused hours in alternative houses;

and

advised to stay away from respondent’s staff and those which he complained about.

The applicable law under Section 5 of the Act sets out:

(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.

S 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.

.

The complainant has brought separate sets of proceedings under both the Safety Health and Welfare at Work Act 2005 and the Protected Disclosures Act 2014.  The Labour Court outlined in PDD218 Hyde And Seek Glasnevin V Jade Byrne-Hoey, citing Culkin v. Sligo County Council (2017) IECA 104, that “…..while ‘Culkin’ permits cases with the same facts to proceed in different fora, where they concern different losses, a claimant cannot recover more than once in respect of the same loss.

The Complainant lodged his complaint with the WRC on 26/05/2022 and therefore, the cognisable period for the purpose of the Act is 27/11/2021 to 26/05/2022.  Of the alleged penalisations, the following alleged penalisations occurred outside of the cognisable period:

scolded for reporting in incident with Ms A during handover,

made to apologise to a person whom he saw assault a service user,

subjected to training for having breached GDPR guidelines,

excluded from the investigation process as relates to his own complaint;

excluded as one of 2 witnesses to the event;

relevant experience disregarded as part of job interview for CNM2 role.

advised to stay away from respondent’s staff and those which he complained about.

Claims of penalisation which may be deemed to be within the cognisable period must, therefore, be examined to establish if the complainant suffered a detriment contrary to the Act, during the cognisable period and to establish, as the Labour Court outlined in PDD162 Aidan & Henrietta Mc Grath Partnership v Anna Monaghan, if the

“detriment giving rise to the complaint ….(was) incurred because of, or in retaliation for, the Complainant having committed a protected act. This suggests that where there is more than one causal factor in the chain of events leading to the detriment complained of the commission of a protected act must be an operative cause in the sense that “but for” the Complainant having committed the protected act he or she would not have suffered the detriment. This involves a consideration of the motive or reasons which influenced the decision maker in imposing the impugned detriment.

Alleged Detriments within the cognisable period:

Deemed Unsuitable for the role of Staff Nurse:

I note the complainant’s evidence that he should have secured the position of Staff Nurse following his interview in February 2022 based on his experience, and I also note that Ms Hayes was not involved in this interview and I have further reviewed the submissions regarding the feedback the complainant received regarding his interview.  While noting the complainant’s disappointment I am unable to find a causation between the complainant’s failure to secure a position being as a result of the protected disclosure and I do not find in the complainant’s favour with regard to this aspect of the complainant’s complaint.

Hours of Work Taken:

The complainant gave evidence that hours were taken from him or reduced following his failure to secure the staff nurse position in 2022, and Ms Hayes gave evidence that the respondent’s nurses were entitled to avail of shifts and therefore, there was not the same need for agency nurses and the complainant did not dispute this.  Taking into consideration all the circumstances and the complainant’s own evidence regarding his unavailability for shifts, I am unable to find a causation between the complainant’s alleged reduction in hours being as a result of the protected disclosure and I do not find in the complainant’s favour with regard to this aspect of the complainant’s complaint.

Refused hours in alternative houses:

The complainant gave evidence that he was refused hours in alternative houses but appeared to have difficulties in articulating specifics regarding this claim and also as to when they occurred.  Taking into consideration all the circumstances I am unable to find a causation between the complainant’s allegation of refused hours in alternative houses being as a result of the protected disclosure and I do not find in the complainant favour with regard to this aspect of the complainant’s complaint.

Having heard all the submissions and evidence I find that the complainant has failed to establish within the cognisable period causation between the penalisations alleged and the protected disclosure within the cognisable period and I do not find in favour of the complainant and I find that the complaint was not well founded.

The complainant submitted that the complainant was relying on the same facts regarding complaint  CA-00050870-001 and CA-00050870-002 and that they were complaints under different legislation.   The Complainant commenced his employment at one of the Respondent’s residential care facilities in or around March 2015.   The Complainant is a fully qualified and experienced nurse, who qualified in 1992 and has extensive experience in nursing patients with intellectual special needs. The Complainant was employed as an Agency worker who was paid via his Agency on a weekly basis. The Complainant is paid a gross wage of €1845.99 per week (€1209.98 net).  The Complainant was transferred to another Community House in December 2019. The Complainant had no written terms of employment with the Respondent, but did have a contract with the agency and while not contracted to work a specific number of hours per week, his average working week was 48 hours per week and worked on a shift basis.

Around 21/04/2020 the Complainant witnessed an assault on a resident at the facility by a colleague Ms A who was in the employment of the respondent when Ms A poured water over a resident. On foot of same, the Complainant reported the incident to Ms B the CNM 2, who in turn informed the Regional Director of Nursing, Eva Hayes. It is the position of the Complainant that the report constituted a Protected Act as per the Safety, Health & Welfare at Work Act, 2005 and having witnessed the incident took it very seriously.  The Complainant was advised that had he been a direct employee of the HSE, or had it been witnessed by a direct employee of the HSE, the incident would not have been reported. This understandably stayed with the Complainant.  At all material times hereto, the Complainant followed all appropriate procedures. The Complainant understood, thereafter, that an investigation took place, and that Ms A was reassigned to a different community house and continued to report directly to Ms B, whom it was submitted was also Ms A’s friend professionally and personally.

Subsequently, when the Complainant and Ms A came into contact at work again, Ms A ignored the Complainant which made him uncomfortable. He called her aside to speak to her and asked her what had changed since the incident. The Complainant felt that at the time of reporting that he was merely doing his duty. Ms A apologised to the Complainant at the time of the incident for having put him in the position of having to report the incident at all. She informed the Complainant she had seen the report he had made. The Complainant asked her who had shown her the report, she declined to answer and said the conversation was finished.

The Complainant admitted at the time and maintains that he had shown his written report to two colleagues. Ms Hayes was sent a copy of the report as she was the designated person to investigate the incident. The Complainant had also shown the report as part of the shift handover process to two incoming night duty staff that evening, one of which is a friend of the reported colleague.  After making the initial complaint, the Complainant felt unsupported by management and wrote to Ms Hayes who was the designated person dealing with their investigation to highlight this.

In response to his letter, Ms Hayes scheduled a meeting for 09/10/2020 and the Complainant attended. At the meeting, he was informed he could have brought someone with him. This came as a surprise to the Complainant as it was the first time, he was made aware of this. He informed Ms Hayes that he had been offered no support by management including herself. This was not received well by Ms Hayes. She confronted him having been informed by Ms A that he had shown his written report to work colleagues. Ms Hayes also told the Complainant that the report had been shown to the reported colleague. The Complainant queried whether that had been necessary but it was confirmed it was and was “a part of the investigation”. The Complainant admitted having shown other colleagues the report, in his mind he had to, it was a part of the handover process. Ms Hayes made it clear he should not have done this, which the Complainant acknowledged, and for which he apologized.

It is the Complainant’s belief at this point that he was made to feel as if he was the individual under investigation rather than Ms A whom he witnessed carry out an assault on a resident, as per his protected act. The Complainant received minutes from the said meeting on the 06/11/2020, 4 weeks after the initial meeting. The Complainant addressed inconsistencies in the minutes of the meeting with a follow up email dated 10/11/2020. On the 26/01/2021 the Complainant received an email from Ms Hayes enquiring if an apology had been made to the colleague in question for having shown colleagues the report. Ms Hayes said she had been advised previously by the Complainant that this would happen. The Complainant advised Ms Hayes in an email dated 27/01/2021 that an apology had never been discussed and was not included in any of the documentation between Ms Hayes and the Complainant. The Complainant was left bewildered as to how Ms Hayes could have thought the Complainant would be apologising and Ms Hayes advised the Complainant that in order for the matter to go no further, he would have to apologize. The Complainant, out of fear that he would not get any further work from the Respondent going forward, wrote a letter of apology dated 21/01/2021.  The apology was reduced to writing in circumstances where the employee in question would not engage with him. The Complainant’s mental health was beginning to deteriorate at this point as the whole incident and what developed thereafter with Ms Hayes had left him feeling mentally drained and exhausted.

During the meeting Ms Hayes outlined she wanted the Complainant to complete other tasks in relation to safeguarding vulnerable adults and stated she would personally monitor his progress bearing in mind he was an agency nurse and not an employee of the HSE. These also included training in GDPR and open disclosure. This appeared odd to the Complainant as he was not under investigation. She informed him that the issue in relation to his initial complaint of 21/04/2020 would be taken no further. The Complainant was surprised at the outcome of the meeting, as he had initiated contact with Ms Hayes on the basis that he had received no support from management in relation to his initial protected act and it was the Complainant’s belief that the narrative created during the meeting was to make him feel as if he was under investigation.

To the best of the Complainant’s knowledge, an investigation of sorts took place however as the Complainant, he was not in any form included, kept up to date with the progression of same, passed any report detailing the investigation and/or its outcome. The Complainant was not advised whether the employee in question was disciplined or spoken to in any manner, nor was he informed of what steps were taken in relation to the assaulted party to this complaint. The Complainant did come to learn, although not communicated to him directly that Ms A had been reassigned to another house of the Respondent. This is the best indication that the Complainant can give of the outcome of the investigation.

Further correspondence occurred between Ms Hayes and the complainant following a meeting around 09/10/2020. Ms Hayes had requested the complainant refamiliarize himself with National Policy & Procedure and the complainant responded identifying inaccuracies in Ms Hayes record of the meeting on 09/10/2020.

In February 2020, the Complainant unsuccessfully applied for a permanent CNM2 position with the respondent. Ms Hayes was on the panel for this interview and the minimum threshold in any competency area is 40%. Should an applicant go below that, then an applicant is disqualified entirely from the application process. To the Complainant’s surprise, the Complainant was marked at 36 for Experience relevant to the role and was thus excluded from the competition. This was despite the Complainant having worked from 2002 to 2007 as a CNM2.  In the weeks and months that followed, the Complainant’s unsuccessful application, the Complainant’s hours and working conditions were the subject of regular and unwarranted interference by some HSE staff. The Complainant had to take it upon himself to rectify this situation through interaction with his CNM2. Such interferences included hours being taken from him and being assigned to two other colleagues on the basis that they were HSE employees and entitled to the hours. Further, the Complainant was denied the option to work in locations as hours were not made available to him. The Complainant queried this and was informed by Ms C, manager, that the reported colleague had requested that this be the case and the Complainant be kept away from her throughout the course of her work, an instruction facilitated by Senior Management.

It was submitted as bizarre that the Complainant, who did nothing wrong and did what a reasonable person would do and what a reasonable employer would expect of a healthcare professional, has been punished for such an action. This has included been scolded for reporting the matter, made to apologise to a person whom he saw assault a service user, subjected to training for having breached GDPR guidelines, excluded from the investigation process as relates to his own complaint, been excluded as one of 2 witnesses to the event, had relevant experience disregarded as part of a job interview in which Ms Hayes was on the panel;  excluded from a panel which he should be on, had hours of work taken, refused hours in alternative houses; and now advised he would be kept away from HSE staff and those which he complained about as if he is the wrong that has done wrong.

In January and February 2022, less senior permanent Staff Nurse positions became available. The complainant applied and was called for interview on 21/01/2022 and the Complainant received notification in February 2022 that he had been unsuccessful in his application.  The Complainant appealed the decision and until 20/04/2022, the Complainant had heard nothing in relation to his appeal and had received no contact or correspondence in relation to same, the outcome of which remained unchanged.  The Complainant understands that the individuals awarded the permanent positions were nurses newly qualified and inexperienced. Around 18/05/2022 the complainant wrote to Ms C alleging that another colleague had engaged in continuing bullying behaviour and that management had failed to address the issue adequately or at all. The complainant highlighted that this had been going on for a number of months, having first occurred in March 2022 and remained unchallenged. This was never addressed by the Respondent and the failure on the part of the Respondent to consider the Complainant for the permanent Staff Nurse position after already excluding him from the CNM2 position panel, combined with the failure of the Respondent to engage with the Complainant in any meaningful way regarding his April 2022 bullying complaint tells the Complainant that the powers that be will not allow the Complainant to secure a permanent position with the Respondent. The Complainant is adamant that this attitude from the Respondent towards him all strings from his initial Protected act complaint. The above mentioned combined with the litany of penalisations satisfies that burden upon the Complainant.

It is the belief of the Complainant that reporting the initial incident in April 2020 has been detrimental to his professional good standing and professional progression. It is the Complainant’s belief that he has been victimized for reporting the incident in the first place. The Complainant contends he has been isolated, bullied, victimized, and punished by way of reduced hours at times, interference with scheduled work, changed working schedules, potential transfers to other sections and also and perhaps most notably in relation to his failure to gain a permanent position despite being the most senior suitable candidate available to the Respondent.

It was submitted that the 2005 Act precludes penalisation by an employer against an employee.  Having regard to the provisions set out above, it is submitted that the complainant was entitled to report what he had seen in April 2020 and was entitled to do so without detriment to his own professional and personal circumstances.

The acts of the employer must be as a direct result of the action of the Complainant. As regards penalisation within the Safety, Health and Welfare at Work Act 2005 (the “2005 Act”) the employee must satisfy that the detriment occurred at a time when the employer knew the employee had made a complaint. If that was established, then it would be for the employer to satisfy the Court that the dismissal was unrelated to the complaint. It is submitted that the Respondent, its servants or agents failed, refused and/or neglected to vindicate the Complainant’s legal rights subsequent to the making of his complaint. Indeed it is further submitted that the Complainant was in fact penalised for making his protected act. 

It is submitted that the Complainant worked at the Respondent’s facility as an agency worker and was at all material times hereto entitled to work under the same protections as any employee of the Respondent. The Complainant respectfully requests a finding that the conduct, acts and/or omissions of the Respondent were contrary to the Act.  The Complainant respectfully requests a finding that the conduct, acts and/or omissions of the Respondent, their servants or agents, were contrary to the Welfare, Health and Safety at Work Act 2005.

The evidence of Mr Foy was that he qualified in 1992 and was witness to an assault of a resident and contacted the CNM2 and informed her in April 2020 and that she replied that she supposed she would have to report it and a report was requested and submitted.  He saw Ms A pour water over a the head of a resident.  He said he informed a staff nurse what had occurred as he thought that they should be told and that this staff nurse may have told someone else.  He wondered if any action had ever been taken about Ms A the person who assaulted the resident and that he was never interviewed about what had happened.  It was his belief that the assault was put on the back burner and he thought he was invited to a meeting for support and found it was more about what he had done with GDPR and that he was told he had broken GDPR.  He was told that if he had been a HSE worker then the incident would not have been reported.  It was agreed that an online GDPR and safeguarding course would take place.  He said that thereafter he experienced negative interactions and that the person who assaulted the resident asked that the complainant not work with her and that the complainant missed out on shifts because of this. 

He was moved to another area and one time when he worked with Ms A, she ignored him and when he asked what had changed, she said that he had reported her.  The complainant said that he was ignored by people and that it was his belief that people were talking about him behind his back but that he had no issue working with the individual who did not want to work with him.  He said that he was often not given the premium shifts and that he found out in Feb/March 2022 that he did not get the job of staff nurse and that a week later his roster changed and that his shifts were given to a different employee.

The complainant said he applied for CNM2 and did well in 4 sections but was unsuccessful and it was mentioned that he did not fill out a piece about experience and that he did not elaborate on another apart of the application form.  He confirmed that the interview and result was issued before the incident of April 2020. It was his evidence that he is a person who says what they see and people maybe do not like it and that it was detrimental to him as he spoke up about an incident that he saw and that other employees would not have reported it and he was viewed as a trouble maker.  He found it hard to believe that it could be said that he lacked experience.

Under cross examination Mr Foy confirmed that he reported the incident with Ms A in April 2020 and that he showed the report to two people at handover.  He confirmed that he received an interview pack setting out the details of how the interview that he was going to would be conducted.  He outlined that he was surprised that he was not interviewed regarding what he had observed with Ms A and the client.  When asked about what evidence he had about not getting shifts when he came back on duty, he said there were given to another nurse and no reason was given as he was no longer getting those shifts.  He confirmed that he had said he was not available on a Monday and a Friday and that this was known and agreed.

The complainant works as an Agency staff Nurse in Intellectual Disability Residential Services and has been based in residential houses as a Staff nurse.

It was outlined that while the complainant submits that he was penalised under safety health and welfare at work act, the respondent has no details of any such complaint made by the complainant.  It was submitted that the complainant was not penalised and did his duty by reporting the incident that took place.  The complainant was not entitled to information in relation to the process that applied regarding another employee.  The GDPR issue was addressed with the complainant as he shared his statement with work colleagues.  No health and safety issue were reported to the respondent.

It was submitted that an incident arose at a residential house on 21/04/2020 where an employee acted inappropriately in their duty of care to a resident and the complainant, the Nurse on Duty at the time reported the matter to the CNMs who referred the matter to the Regional Director of Nursing.  The resident was given relevant and necessary support and preliminary screening was conducted under the appropriate policies and HIQA were informed and the matter dealt with through the disciplinary procedures.  The complainant submitted that he was not made aware of the outcome and that no investigation was conducted and this is not a matter for the complainant as any disciplinary matter is confidential.

At the time the complainant shared his statement with a colleague which was breach of GDPR and meetings were held with the complainant, a course of remedy agreed and the complainant acknowledged that he should not have shared the report.  It was submitted that the complainant took the appropriate action as was his duty in line with the respondent’s policy to report all such incidents.  He submits that he was penalised for reporting the incident resulting in him not being successful in the competition of Staff nurse which he appealed and a review of his interview notes took place and the decision of the interview board was upheld and he was advised that he could request a personal review but did not take this matter to the next stage.  The complainant also applied for the position of CNM2 and was unsuccessful and the complainant appealed this also.

Evidence of Ms Hayes was that in April 2020 a safe guarding incident was reported and Mr Foy gave her the facts and that she reassured him that he had done the right thing communicating to her and that he did everything he should have done and the resident involved was safe guarded and the person involved left that shift.  She said that such matters are privy to the staff and that there is a zero-tolerance approach and disciplinary may arise.  She said it appeared that the relationship was breaking down and a meeting about the relationships occurred and that her belief was that it was an open meeting.  She said Mr Foy acknowledge that he should not have shared the report and that training was discussed and options explored and that they talked about supporting staff and that she felt it was very positive and that Mr Foy said the info should not have been shared.  She said that she would never make someone apologise and that her memory of the meeting was that it was open.  She said that the complainant was requested to give alternative examples during the interview.  She said that there are rolling rosters in place.

Under cross examination Ms Hayes said Mr Foy did the right thing and that the people who should have known about the incident did know.  She said on the date of the incident she got a chronological report and there may have been a phone call.  She did not know if there was a follow up conversation but that others would have followed up.  She said as it involved other people he would not have been involved.  She said the meeting of 09/10/20 was a meeting and not a follow up meeting and that she did not say to Mr Foy to bring someone.  She believed it was a forum to discuss where things were going.  She confirmed that she took minutes and that he was not told he could bring someone and that she was trying to ascertain if this had been a breach of GDPR.  She said it was not her intention to ambush and that the complainant advised that he was struggling with relationships.  She denied that Mr Foy became the bad guy and she thinks she explained about GDPR and that he said he felt under pressure to share the report and that it was regrettable and that she did not sit on the interview panel when he sought a staff nurse position.  She did not believe it was reasonable to assume his roster was altered or that he was unsuccessful in his job application as a result and that agency nurses are used when there is a shortage of respondent staff and after the recruitment process there were respondent staff available to take shifts.

The complainant witnessed a distressing incident of abuse against a resident by an employee of the respondent on 21/04/2020 and reported this incident and that this constituted a protected act and that as a result of the protected act the complainant has been penalised and but for the protected act he would not have been penalised.  The respondent denied that the complainant made a protected act under the 2005 Act and denies penalisation as a result of the alleged protected act.  The penalisation which the complainant submitted had occurred included

scolded for reporting incident with Ms A during handover,

made to apologise to a person whom he saw assault a service user,

subjected to training for having breached GDPR guidelines,

excluded from the investigation process as relates to his own complaint,

excluded as one of two witnesses to the event,

relevant experience disregarded for position of CNM2 role,

deemed unsuitable for the role of Staff Nurse,

hours of work taken,

refused hours in alternative houses;

and

advised to stay away from respondent’s staff and those which he complained about.

Section 27 of the Safety, Health and Welfare at Work Act 2005 provides:

27.—(1) In this section “penalisation” includes any act or omission by an employer or a person acting on behalf of an employer that affects, to his or her detriment, an employee with respect to any term or condition of his or her employment.

(2) Without prejudice to the generality of subsection (1), penalisation includes—

(a) suspension, lay-off or dismissal (including a dismissal within the meaning of the Unfair Dismissals Acts 1977 to 2001), or the threat of 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) imposition of any discipline, reprimand or other penalty (including a financial penalty), and

(e) coercion or intimidation.

(3) An employer shall not penalise or threaten penalisation against an employee for—

(a) acting in compliance with the relevant statutory provisions,

(b) performing any duty or exercising any right under the relevant statutory provisions,

(c) making a complaint or representation to his or her safety representative or employer or the Authority, as regards any matter relating to safety, health or welfare at work,

(d) giving evidence in proceedings in respect of the enforcement of the relevant statutory provisions,

(e) being a safety representative or an employee designated under section 11 or appointed under section 18 to perform functions under this Act, or

(f) subject to subsection (6), in circumstances of danger which the employee reasonably believed to be serious and imminent and which he or she could not reasonably have been expected to avert, leaving (or proposing to leave) or, while the danger persisted, refusing to return to his or her place of work or any dangerous part of his or her place of work, or taking (or proposing to take) appropriate steps to protect himself or herself or other persons from the danger.

(4) The dismissal of an employee shall be deemed, for the purposes of the Unfair Dismissals Acts 1977 to 2001, to be an unfair dismissal if it results wholly or mainly from penalisation as referred to in subsection (2)(a).

(5) If penalisation of an employee, in contravention of subsection (3), constitutes a dismissal of the employee within the meaning of the Unfair Dismissals Acts 1977 to 2001, relief may not be granted to the employee in respect of that penalisation both under this Part and under those Acts.

(6) For the purposes of subsection (3)(f), in determining whether the steps which an employee took (or proposed to take) were appropriate, account shall be taken of all the circumstances and the means and advice available to him or her at the relevant time.

(7) Where the reason (or, if more than one, the principal reason) for the dismissal of an employee is that specified in subsection (3)(f), the employee shall not be regarded as unfairly dismissed if the employer shows that it was (or would have been) so negligent for the employee to take the steps which he or she took (or proposed to take) that a reasonable employer might have dismissed him or her for taking (or proposing to take) them.

The complainant has brought separate sets of proceedings under both the Safety Health and Welfare at Work Act 2005 and the Protected Disclosures Act 2014.  The Labour Court outlined in PDD218 Hyde And Seek Glasnevin V Jade Byrne-Hoey, citing Culkin v. Sligo County Council (2017) IECA 104, that “…..while ‘Culkin’ permits cases with the same facts to proceed in different fora, where they concern different losses, a claimant cannot recover more than once in respect of the same loss.

The respondent denied that the complainant made a complaint under the 2005 act and having heard the evidence of the complainant and respondent regarding the reporting of Ms A for an incident of abuse, the reporting clearly satisfies Section 27(3)(a) acting in compliance with the relevant statutory provisions and the complainant clearly reported a protected act under the 2005 Act.

The complainant submitted his claim to the WRC on 26/05/2022 and there is a six-month time-limit within which a complaint in respect of an alleged penalisation can be made that is from 27/11/2021 till 26/05/2022. The provision for “penalisation” under the Act must be connected with safety, health and welfare at work and the act of penalisation must arise from a retaliation to an employee who has made a complaint to his employer. In effect , penalisation should, similar to victimisation, be construed as widely and literally as can be fairly done as set out in Panuta v Watters Garden World Ltd [2010] E.L.R. 86.  Section 27(3) provides that the employee must suffer detriment and “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).

Paul O’ Neill v. Toni and Guy Blackrock Ltd (2010) 21 ELR 1 established requirements to establish if there has been a protected act. The respondent denies that there was a protected act under the 2005 Act.  It is clear from the evidence that the complainant made a complaint that there was an incident of abuse by Ms A against a resident and I am satisfied based on his evidence and the respondent’s confirmation of the reported incident that this was a protected act.   The second limb of the test is that the complainant must have suffered a detriment for having raised a concern protected by the Act. This requires that a Complainant must show that there was a detriment and that ‘but for’ having made a protected act under the subsection the detriment would not have happened within the cognisable period.

Of the alleged penalisations, the following alleged penalisations occurred outside of the cognisable period:

scolded for reporting in incident with Ms A during handover,

made to apologise to a person whom he saw assault a service user,

subjected to training for having breached GDPR guidelines,

excluded from the investigation process as relates to his own complaint;

excluded as one of 2 witnesses to the event;

relevant experience disregarded as part of job interview for CNM2 role.

advised to stay away from respondent’s staff and those which he complained about.

Claims of penalisation which may be deemed to be within the cognisable period must, therefore, be examined to establish if the complainant suffered a detriment contrary to the Act, during the cognisable period.

Alleged Detriments within the cognisable period:

Deemed Unsuitable for the role of Staff Nurse:

I note the complainant’s evidence that he should have secured the position of Staff Nurse following his interview in February 2022 based on his experience, and I also note that Ms Hayes was not involved in this interview and I have further reviewed the submissions regarding the feedback the complainant received regarding his interview.  While noting the complainant’s disappointment I am unable to find a causation between the complainant’s failure to secure a position being as a result of the protected act and I do not find in the complainant’s favour with regard to this aspect of the complainant’s complaint.

Hours of Work Taken:

The complainant gave evidence that hours were taken from him or reduced following his failure to secure the staff nurse position in 2022, and Ms Hayes gave evidence that the respondent’s nurses were entitled to avail of available shifts and therefore, there was not the same need for agency nurses and the complainant did not dispute this.  Taking into consideration all the circumstances and the complainant’s own evidence regarding his unavailability for shifts, I am unable to find a causation between the complainant’s alleged reduction in hours being as a result of the protected act and I do not find in the complainant’s favour with regard to this aspect of the complainant’s complaint.

Refused hours in alternative houses:

The complainant gave evidence that he was refused hours in alternative houses but appeared to have difficulties in articulating specifics regarding this claim and also as to when they occurred.  Taking into consideration all the circumstances I am unable to find a causation between the complainant’s allegation of refused hours in alternative houses being as a result of the protected act and I do not find in the complainant favour with regard to this aspect of the complainant’s complaint.

Having heard all the submissions and evidence I find that the complainant has failed to establish within the cognisable period causation between the penalisations alleged and the protected act within the cognisable period and I do not find in favour of the complainant and I find that the complaint was not well founded.

CA-00050870-001

I find that the complainant has failed to establish within the cognisable period causation between the penalisations alleged and the protected disclosure within the cognisable period and I do not find in favour of the complainant and I find that the complaint was not well founded.

CA-00050870-002

I find that the complainant has failed to establish within the cognisable period causation between the penalisations alleged and the protected act and I do not find in favour of the complainant and I find that the complaint was not well founded.

Protected disclosure, penalisation, safety health and welfare at work