Complainant

Respondent

Parties

Gabriel  Germino

Health Service Executive

Representatives

 Setanta Solicitors

Kiwana Ennis B.L. instructed by Byrne Wallace Solicitors

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-00056870-001

26/05/2023

Complaint seeking adjudication by the Workplace Relations Commission under Part 14 Section 103(55M) of the Health Act, 2007

CA-00056870-002

26/05/2023

The complainant is employed by the respondent as a CNM2 (Site Manager). The complaint arises following a proposal to reduce the number of site managers present on the night shift from two to one. The complainant had safety concerns in relation to this proposed change and carried out a risk assessment in relation to same and pursued the issue with management thereafter.

The complaint alleges that, having pursued the matter with the employer, the complainant was penalised for having made a protected disclosure when he was subject to a disciplinary process and suspended from work with effect from 9th December 2022.

The complainant’s representative contends that the complainant’s email of 8th November 2022 stating his concerns with the proposed changes as well as the risk assessment carried out by the complainant and submitted to management amounted to a protected disclosure within the meaning of the legislation. The complainant contends that he was subsequently suspended from work and subject to a disciplinary process in an act of penalisation for raising these concerns. The complainant stated that he was suspended between 9th December 2022 and 2nd March 2023 and has been on certified sick leave since that time.

The complainant’s representative stated that a grievance was submitted to the respondent on 19th May 2023 outlining the protected disclosure that the complainant had made and the penalisation he had suffered as a result.

Legal Submissions

The complainant’s representative stated that the issues raised by the complainant concerning health and safety issues fall within Section 5(3)(d) of the Protected Disclosures Act, 2014 (as amended) concerning relevant wrongdoings for the purposes of the Act. The complainant’s representative cited the cases ofKilraine v London Borough of Wandsworth [2018] EWCA Civ 1436, Baranya v Rosderra Irish Meats [2021] IESC 77, Barrett v Commissioner for An Garda Siochána and Minister for Justice [2022] IEHC 86, ADJ-00033234 Conor Williamson v David Stone and Carol Stone t/a Ashton Dog Pound and Warden Service and ADJ-00025139 A Care Assistant v A Disability Service Provider in support of the complainant’s position.

Evidence and Cross examination

The complainant gave evidence by affirmation at the adjudication hearing. The complainant stated that it was unsafe to have just one site manager on duty during the night shift and that he had conducted a risk assessment on the issue which outlined a number of reasons why the proposal was unsafe. The complainant stated that he did not receive an acknowledgement of his risk assessment despite emailing same to the director of nursing and hospital manager. The complainant stated that he was suspended on 9th December 2022 and was not given any reasons for the suspension. The complainant stated that his suspension was lifted on 2nd March 2023 and that he has been on certified sick leave since then. The complainant contends that the suspension occurred because of the issues he had raised in relation to the proposals to reduce site managers on the night shift.

It was put to the complainant in cross examination that between the two units, there were 30 staff employed and that the complainant had no experience of night shifts at the community nursing unit (PPCNU) as both site managers were based at the short stay unit (SSU). On that basis, it was suggested to the complainant that he could not have been aware or had any knowledge of any risks or hazards in that area. Counsel for the respondent also put it to the complainant that his risk assessment as submitted was incomplete, and that no risks had been identified by him in terms of identifying the likelihood and impact of a risk which is required while conducting a risk assessment. The complainant responded that he was stressed, confused and was being bullied and as a result was unable to think straight and complete the risk assessment.

It was also put to the complainant that the disciplinary investigation arose, not as a result of the protected disclosure that the complainant claims to have made but as a result of his leaving work early on 8th November 2022, without permission and for refusing to take part in a handover as well as other issues regarding his conduct at work. The complainant accepted that he had refused to do a handover but stated that he did seek permission to leave early on the day in question as he was feeling unwell.

Closing submissions

In closing submissions, the complainant’s representative stated that the respondent has failed to discharge the burden of proof it bears in relation to the protected disclosure. The fact that the risk assessment was incomplete does not negate the fact that the protected disclosure was made by the complainant. In the within complaint a senior manager raised concerns by submitting a risk assessment and it was ignored by two directors of nursing without being returned for completion or having another risk assessment conducted based on the concerns raised. The complainant was then suspended as a result of making the protected disclosure which is an act of penalisation in contravention of the provisions of the legislation. The complainant is seeking compensation, which is effective, proportionate and dissuasive and in line with the “Von Colson” principles.

The respondent refutes that the complainant made a protected disclosure and that he was penalised as a result or at all. The respondent’s position is that the complainant addressed industrial relations issues in relation to his terms and conditions of employment and never invoked the respondent’s protected disclosure policy and that his representative did not engage with correspondence on a number of occasions form the respondent’s national office for protected disclosures. The respondent stated that the first mention of a protected disclosure was in correspondence from the complainant’s solicitor in May 2023 which was more than six months after the issues in question arose in November 2022.

The respondent’s position is that the complainant’s grievances related to his moving from night shift to day shift and the uncertainty in relation to retaining the higher level of pay associated with working nights. The respondent contends that when the complainant stated he was unhappy with the managerial staffing levels on the night shift, his moving to days only became an issue when the issue of reduced earnings arose, and he subsequently returned to night shifts. On his return to night shifts he refused to carry out his role as the sole site manager in charge of both units and issues with his attitude towards his work and his colleagues as well as a situation where he left work without permission and had refused to take a handover resulted in a disciplinary process being initiated. Counsel for the respondent contends that if the complainant’s pay on days had remained at the same level as when he worked on nights, there would have been no issue at all, and the issues that were raised were not protected disclosures.

Legal Submissions

The respondent contends that the issues raised by the complainant in his email of 8th November 2022 and his incomplete risk assessment do not provide any relevant information or wrongdoing on the part of the employer for the purpose of satisfying the definition of a protected disclosure. Counsel for the respondent cited the cases ofBarrett v Commissioner for Án Garda Siochána and Minister for Justice [2022] IEHC 86 and Baranya v Rosderra Irish Meats [2021] IESC 77, in support of the respondent’s position in that regard.

Evidence and cross examination

The Assistant Director of Nursing (Older Persons Services) who took up the role in February 2023 gave evidence by affirmation at the adjudication hearing. The witness stated that operational changes took place in a number of hospitals and site managers had been reduced from two down to one in a number of other locations as the organisations were realigned with other services in the community. The witness confirmed that all managers were trained in completing risk assessments, the purpose of which was to prevent, mitigate and alleviate risks in the provision of services. The witness further confirmed that the site manager role is a point of contact role with a number of nursing and care staff also in place and in reality, the impact of a reduction in site managers on the night shift is minimal.

In cross examination, the complainant’s solicitor queried why the incomplete risk assessment would not be acknowledged or returned for completion. The witness reiterated the point that, the complainant, as a senior manager, was trained in completing risk assessments and that it should have been completed. The complainant’s solicitor also queried whether there was a requirement to carry out a risk assessment in respect of proposed operational changes. On this point the witness stated that at the time there was no obligation to carry out a risk assessment in those circumstances.

Closing submissions

In closing submissions counsel for the respondent reiterated the point that in his email of 8th November 2022, the complainant did not disclose any information in relation to relevant wrongdoings as required by the legislation. While the complainant is opposed to the changes to managerial staffing levels on the night shift, the respondent’s position is that there are no safety issues flowing from the changes and the changes have already been implemented in a number of other facilities and are operating without any issues. In relation to the risk assessment, counsel contends that this was not completed and did not show or rate any risks as it should have done. Counsel contends that the disciplinary process arose out of separate circumstances and not as a result of the complainant’s email and risk assessment of 8th and 14th November 2022. The respondent is seeking that the complaints be dismissed.

The Applicable Law

Section 5 of the Protected Disclosures Act, 2014 provides as follows:

5. (1) For the purposes of this Act “protected disclosure” means, subject to subsection (6)] 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, 7B, 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 F13 in a work-related context.

(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,

that a breach has occurred, is occurring or is likely to occur, or

(i) 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 or an attempt has been, is being or is likely to be made to conceal or destroy such information.

(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.

(5A) A matter concerning interpersonal grievances exclusively affecting a reporting person, namely, grievances about interpersonal conflicts between the reporting person and another worker, or a matter concerning a complaint by a reporting person to, or about, his or her employer which concerns the worker exclusively, shall not be a relevant wrongdoing for the purposes of this Act and may be dealt with through any agreed procedures applicable to such grievances or complaint to which the reporting person has access or such other procedures, provided in accordance with any rule of law or enactment (other than this Act), to which the reporting person has access.

(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) The motivation for making a disclosure is irrelevant to whether or not it is a protected disclosure.

Transitional Arrangements

Section 6 Schedule 7 of the Protected Disclosures Act, 2014 states as follows:

6. Subject as provided for therein, section 12 (amended by section 21 of the Act of 2022) and Schedule 2 (amended by section 25 of the Act of 2022) shall apply where—

(a) before the date of the passing of the Act of 2022, a worker within the meaning of section 3 (being that section in the terms as it stood before the commencement of section 4(a)(iii) of the Act of 2022) who is or was an employee—

(i) made a protected disclosure within the meaning of section 5 (being that section in the terms as it stood before the commencement of section 6 of the Act of 2022), and

(ii) was penalised for having made such a disclosure,

and

(b) proceedings under section 12 (amended by section 21 of the Act of 2022) are initiated after the commencement of the said section 21.

Burden of Proof

Section 12 (7C) of the Protected Disclosures Act, 2014 states as follows:

12(7C)  In any proceedings by an employee under the Workplace Relations Act 2015 in respect of an alleged contravention of subsection (1), the penalisation shall be deemed, for the purposes of this section, to have been as a result of the employee having made a protected disclosure, unless the employer proves that the act or omission concerned was based on duly justified grounds.

Conclusions

Having considered the matter, I find that the complainant’s queries and observations in relation to the proposed changes to staffing levels in his email to management of 8th November 2022 and the incomplete risk assessment of 14th November 2022 did not amount to a protected disclosure within the meaning of Section 5(3)(d) of the Protected Disclosures Act, 2014. I note the contents of the email in question and in my view no information is provided or relevant wrongdoings identified by the employee to come within the definition of a protected disclosure.

In respect of the incomplete risk assessment, I find that the complainant was inconsistent in his evidence on this point. He stated that he was stressed, confused and was being bullied which rendered him unable to think straight and complete the risk assessment, however he also stated at the adjudication hearing that he did not have time to complete the risk assessment.

While the complainant contends that he was penalised by the employer as a result of his email and risk assessment, I find that this is not the case. I find that the suspension and disciplinary process arose because of a separate set of circumstances and was ultimately discontinued in March 2023 when the employer accepted that the disciplinary process was flawed.

I also find on balance that, in November 2022, the complainant was raising issues that related to his terms and conditions of employment and that it was these issues that were of concern to him and that he was not making a protected disclosure within the meaning of the legislation.

In conclusion, I find that no protected disclosure was made by the employee and therefore his complaint is not well founded.

Having considered the submissions and evidence of the parties and the case law cited, I find that the complaint is not well founded.

Protected disclosure, Penalisation.