PDD242

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00016805 (CA-00021731-002).

BACKGROUND:

The Worker appealed the Decision of the Adjudication Officer to the Labour Court on 16 July 2020 in accordance with Section 8A of the Unfair Dismissals Act 1977 to 2015. Labour Court hearings took place on 22 October 2022, 7 February 2023, 7 November 2023, 8 November 2023, 21 May 2024 and 22 May 2024.

The following is the Decision of the Court:

DECISION:

This is an appeal by Marian Nowak against an Adjudication Officer’s Decision (ADJ-00016805 CA-00021731-002, dated 10 June 2020) in a claim that he was penalised and dismissed by his former employer Moorehall Disability Services, having made protected disclosures under the Protected Disclosures Act 2014 (“the Act”). The Adjudication Officer held that the complaints under the Act were not well founded.

For ease, the parties are referred to in this Determination as they were at first instance. Hence, Marian Nowak is referred to as “the Complainant” and Moorehall Disability Services as “the Respondent”.

Background – the Appeal Hearing

A Notice of Appeal was received by the Labour Court on 16 July 2020. Initial hearing dates were set for 24 May 2022 and 17 August 2022, but postponed following applications made by the Respondent and Complainant respectively. A hearing on 26 October 2022 was also postponed. Having granted those postponements, the Court advised that no further postponements would be granted.

The case opened for hearing on 7 February 2023 and the Complainant outlined his submission that day. The Complainant is a lay litigant and the Court spent considerable time clarifying what protected disclosures were alleged, when they were made, to whom they were made, and what acts of alleged penalisation resulted. The appeal was scheduled for two further days to hear the Respondent’s replying submission and any relevant witness testimony. It was agreed that the evidence for this appeal and linked case (Determination UDD2419) would be heard together. The parties were also allowed to lodge supplementary submissions on the allegations of penalisation post-termination of employment and any additional relevant caselaw.

The appeal was set down for two days on 7 and 8 November 2023. On the first day, the Court was brought through the Respondent’s replying submission and both sides had an opportunity to comment on the other parties’ submissions after which the Complainant gave his evidence-in-chief.

On 8 November 2023, before cross-examination commenced, the Complainant advised that he was unwell and requested an adjournment. The application was unopposed, and the hearing adjourned. Subsequent hearing dates scheduled for 12 and 13 March 2024 were postponed by the Court of the Court’s own motion and rescheduled to 21 and 22 May 2024.

At the re-convened hearing on 21 May 2024, the Complainant was cross-examined on his evidence. The Court heard evidence from (and cross examination) of three other witnesses: Marianna Respondek, for the Complainant, and Amy Clinton and Katrina Lynch, for the Respondent.

On 22 May 2024, the Complainant emailed the Court at 8.30am as follows:

“Dear Madam I woke up this morning/night and I have vomiting with diarrhea I am not able to attend today hearing I so dizzy I can't even move I'm asking for a postponement (sic)”

The hearing opened as scheduled and the Court noted that, in light of the application from the Complainant, it was open to it, having heard from the Respondent, to either adjourn the hearing to an alternative date on the basis of the Complainant’s non-attendance, or to decline the application for a postponement and proceed to decide the appeals on the basis of the written submissions and testimony already presented to it. The Court advised the Respondent that there was a likelihood that due to the pending retirement of a Court member the current division would cease to exist before the matter could be rescheduled, in which case a new division would be configured to hear the appeal afresh.

After a short break to take instruction, Counsel for the Respondent advised that his client was opposed to any application to adjourn the hearing to another date. He noted there was no medical evidence to corroborate the Complainant’s medical status, and that this was the second occasion that the Complainant had sought to adjourn proceedings mid-way through a two-day hearing. The Respondent requested that the matter not be adjourned any further.

Having considered the matter, the Court decided that sufficient cause had not been shown to justify adjourning the case. In deciding to decline the postponement request, the Court had regard to the following:  the appeal, and linked appeal, were received by the Court in July 2020; the Complainant ceased his employment with the Respondent in 2018; the hearing of the appeal over consecutive days was agreed by all parties; extensive submissions were made by both parties and testimony heard from four witnesses; the Complainant notified the Court at short notice at 8.30am on 22 May 2024 that he was unable to attend the hearing that day; this was the second occasion that the Complainant had sought to adjourn proceedings mid-way through a two-day hearing; no medical certification was submitted to confirm the Complainant’s medical status; all oral evidence and cross-examination of that evidence on behalf of the Complainant had concluded; the Respondent was present at the hearing with representation and several witnesses and was ready to defend the appeal; the Respondent was opposed to the application for an adjournment of the case; the requirement for fairness and equity must apply to both parties.

In that regard, the Court considered the following obiter comments from Barrett J in David Mc Cormack and Ashford Castle Hotel Ltd [2022] IEHC 188 at paragraph 17.

“Mr Lawless touches on an important point in this regard. Courts too have a tendency to be more lenient with self-represented litigants than other litigants. However, a question does arise as to whether such systemic indulgence is always entirely fair to the parties who are not shown such indulgence. Justice has to be done in an even-handed manner; certainly, the extension of any indulgence in any one case has to be carefully weighed by a court, or other decision-making body minded to extend such indulgence, against any time and /or financial and /or costs that it raises for the other side in proceedings, not least in ensuring that proceedings are brought to a conclusion in as timely a manner as justice allows”.

Having regard to all the above, the Court was satisfied that, in all the circumstances, a further delay would be contrary to the parties’ right to have a fair and expeditious hearing of the appeal determined within a reasonable timeframe. The Court decided that justice would not be served by postponing the hearing further. The Court decided to determine the appeals based on the written submissions, witness statements and testimony presented to the Court thus far. The hearing closed, and the Court notified the Complainant that his application for a postponement was denied.

Background to Appeal

The Respondent provides care for adults with disabilities. Its service is made up of houses in the community where adults with disabilities live as independently as possible, with supports from staff.

The Complainant commenced employment with the Respondent as a care assistant on 16 February 2018 and was assigned to a 4-bedroom house working with adult males with intellectual disabilities. His employment was terminated four months later on 20 June 2018.

The Complainant contends that his employment was terminated (UDD2419) for raising health and safety irregularities and that he suffered other forms of penalisation both before and after his dismissal.

The Respondent contends that no protected disclosures were made by the Complainant during his employment and consequently there could be and was no penalisation. It contends that the Complainant was dismissed during his probationary period because of his inability to engage effectively with the residents.

Summary Position of the Complainant

The Complainant submitted that he made twelve protected disclosures and that the Respondent, in an attempt to cover up its own neglect, wrongly accused the Complainant of negligence.

When were the complaints made?

The Complainant raised concerns at the beginning of his employment, during his three-day induction programme about his lack of training in medication management and money handling.

The Complainant made a protected disclosure to Marianna Respondek, the duty nurse, on 3 March 2018 and subsequently to the Director of Care, Barbara Murphy, (hereafter referred to as “BM”), when he raised concerns about the safety of residents as medication was not administered by the nurse coming off duty that day.

He raised further concerns about his lack of medication training with BM on 9 March 2018.

The Complainant made protected disclosures about the neglect of a resident, following a complaint made by that resident’s brother-in-law. He made an oral disclosure to the person in charge that the resident did not get a shower and smelled of urine. He completed a report for BM. He made further disclosures about the neglect of that Resident on 11 April, and again at a meeting on 13 April 2018. 

The Complainant raised concerns about the administering of medication (Epilim) to a resident and made a protected disclosure in a written report dated 15 April 2018. 

The Complainant made several protected disclosures to BM during a training course on 17, 18 and 19 April 2018.

He made a protected disclosure about allowing HIQA access to the premises at nighttime.

On 18 April 2018 he made protected disclosures about the administration of medication (Quatiapine), which was given to a resident at the incorrect time against GP recommendations.

He raised multiple protected disclosures about the administration of medication (Calcichew), which was administered to a resident with a glass of water to be swallowed rather than chewed.

The Complainant made a protected disclosure on 15 May 2018 about financial irregularities when there was an unexplained shortfall of €10 in a resident’s private wallet. He made a written report about that matter on 22 May 2018.

The Respondent breached multiple policies in relation to the training of staff, care of residents, administering of medication and financial irregularities. The Complainant was the only care assistant who recognised the needs of certain residents.

The Respondent tried to discredit him to cover up its own negligence. BM was dismissive towards him.

The Complainant was subject to multiple acts of penalisation for raising matters during his employment, which continued after his employment ended.

• On 9 April 2018 he was subject to a supervision meeting and placed on a support plan after it was alleged that he made medication omissions.
• A Managing a Complaint Form dated 10 April 2018 incorrectly cited that he neglected the care of a resident.
• On 1 May 2018, his hours of work were cut from an average of 42 hours to 18 hours a week.
• On 21 May 2018 his work location was changed.
• On 22 May 2018 he was required to attend a probation review. He was not allowed to respond to statements and was told that he had a challenging behaviour. He felt humiliated.
• On 12 June 2018, he was placed on a performance improvement plan. He was not allowed to appeal. His reputation was tarnished in front of HR in an e-mail dated 13 June by BM.
• On 20 June 2018 the Complainant was handed a dismissal letter which stated that he had failed to engage effectively with residents.
• He was subject to humiliation, bullying and stress.
• He was subject to further penalisation after his employment ended. The Respondent refused to pay him for training undertaken in January 2018. He was not sent all information requested under the Data Protection Act. He was not provided with a job reference and had trouble sourcing alternative work.
  
  

Summary Position of the Respondent

The Respondent’s service is fully compliant under HIQA standards regarding all aspects of care provided to residents. The Complainant’s employment was terminated fairly on 20 June 2018, during his probationary period, because of his inability to engage effectively with residents.

None of the alleged protected disclosures, all of which are denied, were made during the Complainant’s employment. They were communicated to the Respondent through correspondence from the WRC following the termination of his employment. None of the matters are protected disclosures within the meaning of the Act, and in most or all cases are mere allegations rather than information in relation to relevant wrongdoings. Furthermore, and without prejudice to the foregoing, there was no penalisation whatsoever of the Complainant and he did not demonstrate any causal link between the alleged disclosures and any alleged penalisation.

A Complainant must have a reasonable belief that any protected disclosure indicates a wrongdoing. The circumstances in which the alleged disclosures were made demonstrate that the Complainant cannot have held such a reasonable belief. His complaints lack credibility, as does the Complainant himself, given the unlawful and wholly inappropriate way he obtained private, confidential, and personal information in relation to residents.

The Complainant unlawfully removed medical records belonging to residents without authorisation. Several documents exhibited by the Complainant are fraudulent and were created or altered after the event by him. This serious matter was referred to the Data Protection Commissioner. The Complainant claimed at the WRC that the documentation was discovered in a bin and, while this is not accepted or credible, even if true it would not entitle him to rely on the documentation before the Labour Court.

Witness Testimony – the Court heard testimony from four witnesses.

Witness Testimony – the Complainant

The Complainant was told he would work with someone with medical training who would administer medication, but he would have to check medication and deal with money. He had no training in the management of medication. During the induction training he asked when he would get training. He was told not to worry as he would receive training.

On 3 March he was late for work due to heavy snow. When he arrived, Nurse Amy Clinton (AC) told him that the morning medication was given. That evening, when he asked the person with training to come to administer the resident’s medication, she said the morning medication was never given. He reported it to Marianna Respondek (MR) and explained that he had no training. She told him to do a written report, which he left for collection by BM, the Director of Care.

On 9 March 2018 at a meeting BM said that he was responsible for three medication omissions. He was not, as he did not administer medication. That was AC, the nurse coming off duty.

On 22 March 2018, a resident’s brother-in-law complained to him that a resident was neglected as he was not showered. He suggested that the resident’s brother-in-law contact BM. He made a written report to BM which was a protected disclosure. He also told Ciara Donegan (CD), the person in charge about it.

On 11 April 2018, the same resident’s brother-in-law phoned and was very angry, as BM had not returned his calls in 3 weeks. He recorded the call in the communications book and made a written disclosure.

On 13 April 2018 he told BM and his line manager Elaine Brennan (EB) about the neglect of the resident when he didn’t get a shower. He had made an oral disclosure on 21 March and a written disclosure on 22 March. BM said he was rude and acting as if he was the expert. He said maybe he was the expert. BM said that the brother-in-law had complained about him. She punished him by placing him on supervision.

On 15 April he made a written protected disclosure about medication (Epilim) as during the weekly check he found different dosages 100g and 200g tablets were given.

On 17, 18, and 19 April he attended SAM medication training and made several protected disclosures. He told BM that she was wrong when she said that he must let HIQA in if they call during the night. That is a dangerous practice contrary to HIQA regulations. She penalised him for raising that issue.

On day two, he told BM that a resident was given sleeping tablets against his doctor’s prescription.

On day three, he told BM that another resident’s Calcichew medication must be chewed, not swallowed with water. He made protected disclosures about Calcichew about 10 to 20 times.

BM was annoyed and penalised him by failing his medication exam, although he scored 71.5% and the national score is 70%. He scored 99% on the 2nd exam.

At a supervision/disciplinary meeting on 8 May 2018 he was told that he had challenging behaviours.

After 8 May 2018 he was penalised when his hours were reduced from 42 to 18 hours per week. He was very agitated and texted EB about it. BM said he was abusive to EB.

On 16 May he left a message for EB to buy a smartphone for a resident. He made 10 to 15 disclosures about the smartphone. He gave the resident a gift of his old phone.

In May he also gave BM details about money missing from a resident.

On 17 or 18 May 2018 BM said she was transferring him to Drogheda, which was clear penalisation. Then she said okay, we will take you back here.

On 20 June he was dismissed, with immediate effect. He was told that there was a problem with the way he engaged with residents. He was not allowed to appeal. He was not on probation, and he had a right to fair procedures. He was penalised by BM who said that he neglected residents, that family members complained, that he did not pass exams, and that he was not the right person for the job. These were unfair allegations.

He was penalised after his dismissal when he asked for payment for training. He sent a grievance but got no reply. He sent a data request but got no reply. The employer says that he doctored documents, but he had no access to documents after his employment finished.

Cross-examination

The Complainant confirmed that he completed induction training and contrary to his earlier evidence accepted that he was subject to a six-month probationary period during which time his employment could be terminated without recourse to the disciplinary procedure.

The Complainant accepted that he had review meetings with BM on 3 February, 9 March and 13 April 2018. He did not accept that EB was not his line manager.

He accepted that he was not required to administer medicine and that his duties were limited to telling a person with requisite medication training that it was time for a resident to take their medication. He said he followed his duties.

When asked about inconsistencies in his evidence he said that the events happened five years ago, and his memory was not so good.

He denied not listening to AC’s handover on 3 March 2018 to the effect that she had administered medication to one resident only and that the other residents needed to be given their medication by her replacement, or that his duties included informing the relevant person when medication was due. His evidence was that the medication should have been administered by AC as the residentswere due on the daycare bus by 8:00am. He denied that he had not informed the relevant person when the medication was due on other occasions. He denied that BM, and not MR the nurse on duty, requested a written report. The Complainant acknowledged signing a document on 9 March 2018 stating AC had not made any errors and the matter was a misunderstanding. He said he was forced to sign it. When asked to explain the reference in the document to there being no daycare bus on 3 March, he accepted that there was no bus that day due to the heavy snow.

In reply to questions about a photocopy of a body assessment chart, the Complainant said that he completed it on 22 March 2018 after receiving a complaint from a resident's brother-in-law. He denied the accusation that he had never given it to the Respondent. He denied the accusation that he had fraudulently created it using a template that he had taken from the Respondent premises. When asked how the document came into his possession, he said that he was entitled to it because of his data access request. When told the document was not provided to him as a part of that request, he said he photocopied it in May. He made a copy of the body assessment chart and the diary entry from the resident’s communication book. When asked why not record the complaint on 22 March 2018 as a diary entry, he said he did so on 11 April 2018. When asked why the entry appeared to be written on 10 April, the Complainant said that he got confused about the dates.

The Complainant said BM had accused him of neglecting the resident by not giving him a shower, and then falsified records when she recorded the complaint as resolved, after consulting with the resident’s brother-in-law. She neglected to respond to the brother-in-law for three weeks. It was not his duty to shower residents, as they are showered in the evening. He was not responsible for getting patients up. His role was to help residents dress, prepare meals, call staff to give medication and to clean up.

The Complainant denied that he created a document after the event alleging wrongdoing in relation to weekly medical checks. He disputed the assertion that it was never given to the Respondent. He disputed that it was made by piecing together post it notes. He then accepted that it was made of post it notes. When asked why such an important disclosure was recorded on post-it notes, he said that it can be oral or written; it does not have to be on brown or white paper. He photocopied the document as it was his protected disclosure, and it was important to copy them.

He denied that he was disruptive during SAM Medication training on 17 and 18 April 2018. He said he made several disclosures. He repeatedly said that HIQA was not entitled to enter premises at night, as that was a danger to employees and the residents. BM did not agree.

The Complainant corrected BM about instructions for taking Calcichew, who said it could be chewed or swallowed. He downloaded a product data sheet from the Internet which says it is not to be used with liquids. The Complainant denied editing or adding information to that document. When invited to comment on grammatically incorrect text in the product data sheet where it says ”not used with liquids,” he said English was not his first language. When invited to comment on a similar product data sheet which contradicted his version and says Calcichew can be chewed or swallowed and taken with or without drink, he said there was no contradiction.

The Complainant said that after his medication training in April, he passed the exam scoring 71% which was higher that the State Examination Commission pass rate. He was penalised by being asked to re-sit the exam. When told that the exam was regulated by HIQA and not the State Examination Commission, he said that he still maintained that he passed. He did not accept BM was accredited to conduct medication training or exams.

On 8 May 2018 he attended a meeting with BM. He accepted the meeting notes stated that it was a probationary review meeting but, in his view, it was a disciplinary meeting where he was subject to accusations. When asked why the Complainant apologised at that meeting for his conduct and for being disruptive, he said that he was a gentleman and often said he was sorry.

He confirmed that he was not penalised for raising issues about a resident’s money and that he was told to contact BM if any further issues arose.

The Complainant did not accept that his actions in giving a resident a smartphone was damaging to that resident and contrary to his care plan. He stated that he did not provide a resident with a phone.

The Complainant confirmed that he was a relief worker and that he was aware that his work location and working hours were variable. He accepted that he was never transferred to Drogheda as punishment and was not required to go there after he raised it as an issue. He was told that  his attitude was important in the role and that the residents were the most important people. He was told about a resident’s intolerance with tomatoes and was told to widen the scope of meals that he cooked.

His employment was terminated at a meeting on 20 June 2018, and he was paid in lieu of notice.

After his dismissal, he submitted a grievance by registered post. He could not explain why a copy of An Post tracking document said that the destination for the letter was for a location in Northern Ireland and not the Respondent’s address. He accepted that he never followed up on that matter.

Evidence of Marianna Respondek - on behalf of the Complainant

Marianna Respondek (MR) was the nurse on duty when she received a call from the Complainant on 3 March after it was discovered that medication was not given that morning to residents. The Complainant did not know what to do and said that he had not received training. She told him to record it as an incident. She had no direct knowledge of what happened only what the Complainant told her.

She helped the Complainant several times to check medication, which was a task he should not have been doing and told him to go to the Director of Care, BM, about this. She said she raised her concerns about recording the correct dosages for medication with BM. In her view, Epilim cannot be administered in a different combination of doses, and Calcichew should be chewed.

Under cross examination, she said she witnessed other protected disclosures made by the Complainant but did not write them down. When asked why she did not record disclosures of wrongdoing when she was obliged to do so, or report them to BM, she said she could not recall. She said she made a verbal disclosure but could not remember the exact date and never put it in writing. She accepted that she did not witness the Complainant make any protected disclosures. She resigned in July after the Complainant left the employment, as she did not want her reputation damaged.

Evidence of Amy Clinton - on behalf of the Respondent

Amy Clinton (AC) was the staff nurse on night duty in the house on 2/3 March 2018. She did a handover with the Complainant when he arrived. He was late arriving, as there was heavy snow which prevented some staff getting to work. She informed him that she administered medicine to one resident at 7.00am and that other residents were prescribed to take medication at 9:00am.

The procedure for administering medicine is to follow the Kardex which details the current GP prescription. It was the Complainant’s job to notify staff who are SAM trained to give medication.

Under cross examination, AC denied that she was responsible for the medication errors. She was aware that the Complainant had no training in medication. She said that it was her responsibility to inform him about who had received their medication, and his responsibility to notify trained staff so that they could administer the medicine.

In response to questions about a document which stated that all medicine should be given to residents at 8:00am AC said that the document was incorrect, as medicine was given at 9:00am, with a 30-minute window on either side of that time. The document was not an official company document and may have been compiled by KL, one of the carers.

She said the bus collects residents between 9:00am and 9:30am and they arrive at 10.00am but there was no pickup on 3 March due to the weather.

Evidence of Katrina Lynch - on behalf of the Respondent

Katrina Lynch (KL) worked for nine years as a carer until 12 March 2018, when she left for family reasons. The Complainant had shadowed her when he started employment. On occasions she would gently remind him to follow care plans. For example, one resident had an issue with tomatoes, but the Complainant still made the same meals. Another gentleman had to reduce weight, but the Complainant insisted on preparing full meals for him. He did not seem to register that it was a health-related issue.

Before she left in March, she compiled a reference document to ensure a smooth transition, as little things can cause anxiety for the residents. She wrote it from a personal viewpoint, and made an error about the time the daycare bus left, as the bus always left at 9:30am as the centre opened at 10:00am

She returned to work for the Respondent on 25 April 2018. She noticed a change when the Complainant was on duty. Residents stayed in their rooms and no longer congregated in the kitchen. There seemed to be a heavy heart in the place. Handovers with the Complainant were sparse as he had an urgency to leave.

Under cross examination, KL refuted the Complainant’s assertion that they did not work together after she left the employment in March. She confirmed that the daycare bus came at 9:30am.

Relevant Law

The relevant statute in place at the time of the complaint to the WRC was the Protected Disclosures Act 2014 of which sections 5 in relevant part defines a protected disclosure as follows:

5. (1) For the purposes of this Act “protected disclosure” means, subject to subsection (6) and sections 17 and 1, 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.

(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.

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

(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.

Deliberation and Findings

The Complainant gave details of multiple disclosures that he contends are protected disclosures for the purposes of the Act. The first matter for the Court to determine is whether the Complainant made a protected disclosure as defined by the Act.

What were the alleged wrongdoings?

 (i)      Lack of training in medication management and money handling

The Complainant contends that he raised concerns about lack of training in medication management and money handling during his three-day induction programme in February 2018, and that he raised further concerns about his lack of medication training with the Director of care, BM, on 9 March 2018. He submits that the Respondent’s failure to provide him with adequate training was a relevant wrongdoing as a breach of HIQA policies, and that his disclosures constitute protected disclosures as per s.5(3)(d) of the Act.

The Respondent refutes that any protected disclosures were made by the Complainant. It submits that the Complainant was not required or permitted to give out medication until he completed a Safe Administration of Medication (SAM) trainingcourse which, in line with normal practice, is delivered later during an employee’s probation. The Complainant’s own evidence was that he was not required to administer medicine, and that his duties were limited to telling the person with the requisite medication training. The Respondent contends that the Complainant failed to carry out that his duty in that regard.

To constitute a protected disclosure under the Act there must be a disclosure of relevant information that in the reasonable belief of the individual tended to show a wrongdoing.  In the view of the Court, a complaint about lack of training in medication and money handling during induction training is not in and of itself a disclosure of relevant information that tends to show a wrongdoing.

Finding: Having regard to the facts as presented at the hearing, the Court determines that no relevant wrongdoing as defined by the Act was identified by the Complainant in relation to training.

The Complainant asserts that he made several protected disclosures when he raised concerns about the neglect of residents and medication irregularities.

(ii)      Medication omissions 3 March 2018

The Complainant contends that on 3 March 2018 he made a protected disclosure to MR, the nurse on duty that day,  and subsequently to BM, when he raised concerns about the safety of residents because of a failure the nurse on night duty to administer medicine that morning. The Respondent submits that no protected disclosure was made by the Complainant, and he was trying to blame a colleague for his failure to carry out his duties that day. 

MR, the daytime nurse on duty, gave evidence that she received a call when the medication error was discovered, however, she had no direct knowledge of what had happened.

AC, the night duty nurse, denied making any medication errors. Her evidence was that she informed the Complainant when he arrived on duty about who had received medication, and that it was his responsibility to notify a trained staff member at the appropriate time to administer medicine due.

The Complainant accepted that his duty was limited to telling the person with the requisite medication training that it was time for a resident to take their medication but denies failing in that duty.

There was a conflict of evidence about what happened on 3 March 2018. The Court had some difficulty with the Complainant’s own evidence on this matter which lacked consistency. On the one hand, he accepted signing a document at a meeting on 9 March in which he acknowledged making a medication error on 3 March 2018. He stated the matter was a misunderstanding and that AC had not made an error. His evidence was that he was forced to sign the document. The Complainant gave evidence that the residents were due at daycare by 8:00am, so should have received their medication by the time he arrived on duty. However, he failed to reconcile that assertion with his subsequent admission that no-one attended daycare on the day in question due to heavy snow.

The Court preferred the evidence of AC, the nurse coming off duty, who gave a clear and credible recollection of events on the morning of 3 March 2018. Given the inconsistencies in the Complainant’s own evidence, the Court is of the view, that the Complainant did not have an objectively reasonable belief of wrongdoing by her on 3 March 2018, and the more likely scenario is that he was trying to mask his failure to carry out his duties on that date.

Finding: Having regard to the above, the Court finds that no protected disclosure as defined by the Act was made by the Complainant in relation to neglect of a resident because of a medication error by AC, the nurse coming off duty, on 3 March 2018.

(iii)      Neglect of a Resident on 22 March 2018

It is the Complainant’s case that he made several protected disclosures about the neglect of a resident, after a complaint was made by that resident’s brother-in-law on 22 March 2018. The Complainant said that when he came on duty the resident was not showered and smelled of urine. He said that he made an oral disclosure to the person in charge and subsequently completed a report for BM, the Director of Care, both of which constitute protected disclosures.

The Respondent denies that it received communications from the Complainant about the neglect of the resident during his employment.  It submits that the Complainant was responsible for ensuring the residents personal hygiene was maintained to an acceptable standard, and that it received a complaint from the resident’s brother-in-law about his care, and about his dissatisfaction with the Complainant’s poor attitude when raising the matter with him.

The Respondent contends that the brother-in-law was ultimately satisfied with the response received and the complaint was satisfactorily closed. The Complainant accepts that the complaint was recorded as resolved but contends that he was wrongly accused of neglecting the resident.

The Complainant relied on three documents to support his assertions that he disclosed wrongdoings about the resident’s care. The Respondent disputes those documents which it asserts are not original and were created fraudulently with stationary removed from the premises by the Complainant.

The Complainant’s testimony was that he completed a Body Assessment Chart on 22 March 2018 detailing the neglect of the resident, which he left for collection by BM. The Complainant contends that he made a second written disclosure on 11 April 2018 when he made a written report, which is similarly refuted by the Respondent. The Respondent refutes ever receiving those documents and says there is no record on the resident’s file, and the matter was not raised by the Complainant prior to his WRC complaint. It asserts that the template chart was fraudulently obtained and completed by the Complainant after the fact. Under cross-examination, when asked how the Body Assessment Chart came into his possession, the Complainant said that he was entitled to have it because of his GDPR data access request. When advised that the document was not provided to him as part of his GDPR request, the Complainant said that he photocopied it and other documents at the end of May 2018.

The Complainant also relies on a photocopy of a diary entry from the resident’s communication book. The entry states: - “(name) Brother complaint received today he said that he wants to speak with Barbara Murphy” (sic). The Complainant said that he recorded the entry on 11 April 2018 after receiving a phone call from the resident’s brother-in-law who was very angry that BM had not returned his calls for three weeks. When asked why he did not record a diary entry on 22 March 2018 about the original complaint, the Complainant said that he recorded it on 11 April 2018.

The diary entry refers to a complaint made by a resident’s family member. The Court finds that the Complainant cannot rely on the diary entry to assert that he made a protected disclosure, as the recording of a complaint from a family member does not, in and of itself, constitute a disclosure made by the Complainant in relation to a relevant wrongdoing.

The Court had some difficulty with the Complainant’s evidence about the source of the other two documents, much of which was contradictory or questionable. No original documents were submitted to the Court and the photocopied versions were strongly disputed by the Respondent.

It is not clear to the Court how the documents relied upon by the Complainant came to be in his possession, as his evidence on those matters was both vague and contradictory. His evasive answers call into question his credibility and, on balance, the Court for reasons expanded on later concludes that the Complainant did not have a reasonable or objective basis for believing that a relevant wrongdoing occurred.

Finding: Having regard to the above, the Court finds that the Complainant did not make a protected disclosure as defined by the Act in relation to the neglect of a resident on 22 March 2018.

(iv)      Administration of Medication – Epilim

The Complainant contends that he made a protected disclosure about the administration of Epilim medication in a written note to EB on 15 April 2018. He submits it was impossible to check the correct quantity of medication (Epilim) for a Resident on his medical records and that the Respondent breached procedures which state that medication records must be kept to account for all medicines received and administered to residents.

The Respondent refutes that any wrongdoings were disclosed by the Complainant about irregularities with medication. It refutes receiving the document relied upon by the Complainant which it says was not recorded on the resident’s file. The Respondent submits that the service was in compliance with HIQA regulations regarding the management of medication and was compliant with HIQA audit inspections around that time. It acknowledges that its pharmacy supplier was changed around this period because of a high level of errors, however, no medication errors were recorded during the month of April 2018.

The document authored by the Complainant queries the dosages of Epilim medication given to a resident and requests that the matter be checked out. To constitute a protected disclosure under the Act there must be a disclosure of relevant information that tends to show a wrongdoing. In the Court’s view, the document raises queries about medication dosages but does not convey information of factual specificity that tends to show a wrongdoing about the administration of Epilim, and so does not constitute a protected disclosure under the Act.

Furthermore, the Court had some difficulty with the Complainant’s evidence about the source of the document. The Complainant denied creating it after the event. In his initial evidence he denied making it by piecing written post-it notes together, but subsequently confirmed that he did. When asked why he wrote such a matter on post-it notes, rather than inform or email the director of care directly, he said that a protected disclosure can be oral or written and the policy does not state it must be on brown or white paper. He said that he thought it important to photocopy it as it was his protected disclosure.

Finding: The Court found the Complainant’s answers to be contradictory and lack credibility. Having regard to the facts presented at the hearing the Court determines for the reasons outlined above that no protected disclosure was made by the Complainant in relation to the administration of Epilim.

The Complainant attended a SAM medication training course on 17, 18 and 19 April 2018, during which he raised various matters with the Director of Care, BM, which he contends are protected disclosures for the purposes of the Act. The Respondent refutes that any of the matters raised demonstrate wrongdoings or were protected disclosures.

(v)        HIQA Access to Premises

The Complainant submits that he made a protected disclosure when discussing the Respondent’s practice of allowing HIQA, the statutory regulatory body, access to the premises at any time of the day or night. He contends such a practice is dangerous and contrary to HIQA regulations, and that he was penalised for saying so during the training course. The Respondent submits that all staff are required to allow HIQA access to the premises on production of identification, but the Complainant refused to accept what he was told.

To constitute a protected disclosure under the Act there must be a disclosure of relevant information that tends to show a wrongdoing. An employee does not have to prove any wrongdoing in order to acquire the protection of the Act. The expression of a viewpoint during a training course about the operation of a policy, as outlined by the Complainant in this case, does not in the view of the Court constitute the disclosure of relevant information that tends to show a wrongdoing.

Finding: Having regard to the facts presented at the hearing the Court determines that no protected disclosure as defined by the Act was made by the Complainant in relation allowing HIQA access to the Respondent premises.

(vi)        Administration of Medication - Quatiapine

The Complainant contends that he made protected disclosures on 18 April 2018, on the second day of training, about the administration of Quatiapine to a resident, which he says was given at the incorrect time against GP recommendations.

The Respondent refutes that such a disclosure was made. It further submits that the records relied upon by the Complainant refer to dates in May 2018, so cannot relate to an alleged disclosure made during a training programme the previous month.

The photocopy of a Medication Administration Record relied upon by the Complainant to support his assertion that Quatiapine was administered incorrectly to a resident prior to 18 April 2018 refers to dates that medication was administered to a resident in late May 2018. As such it cannot be relied upon to assert an alleged wrongdoing about medication administered to that resident before 18 April 2018. The Court did not find the Complainant’s evidence on this matter to be plausible.

Finding: Having regard to the above, the Court finds that no protected disclosure as defined by the Act was made by the Complainant on 18 April 2018 about the administration of Quatiapine to a resident contrary to his GP recommendations.

(vii)       Administration of Medication – Calcichew

The Complainant contends that he raised multiple protected disclosures about the administration of Calcichew, which he says was administered to a resident with a glass of water to be swallowed rather than chewed. The Complainant submits that Calcichew must be chewed, a view which was supported by MR. He relied on a product data sheet downloaded from the Internet to support that assertion. The Respondent refutes any wrongdoing in relation to administering Calcichew.

The Respondent presented the Court with what it contends was the original unaltered version of the product data sheet upon which the Complainant relies, which it asserts demonstrates that he fraudulently altered the text on that document. The Complainant denied editing the document or adding additional text. When asked to comment on whether the clause in the Complainant’s version “Not use with liquids” was grammatically correct, he said that English was not his first language. When asked to comment on the Respondent’s version that makes no mention of liquids and states that Calcichew could be chewed or swallowed, the Complainant said there was no contradiction.

No evidence was presented to the Court to verify the source or authenticity of either document. It is not Court’s role to determine how medication should be administered.

The language contained in the Complainant’s version may have been grammatically incorrect, which prompts questions about its authenticity and whether it was modified in some way. However, the key question that the Court must consider is whether there was a disclosure of relevant information by the Complainant that in his reasonable belief tends to show wrongdoing.

The expression of an opinion in relation to the administration of medication does not amount to a protected disclosure under the Act.  Furthermore, an allegation of wrongdoing is not sufficient in and of itself to amount to a protected disclosure under the Act. An allegation must contain sufficient factual content and specificity such as is capable of tending to show a wrongdoing. No evidence was presented to the Court to demonstrate that medication was administered contrary to a resident’s GP prescription.

Finding: In the Court’s view, having regard to the evidence submitted, the Complainant did not have a reasonable or objective basis for believing that a relevant wrongdoing occurred in relation to the administration of Calcichew.The Court finds that the Complainant’s opinion about how Calcichew medication should be administered does not constitute a protected disclosure under the Act.

(viii)      Neglect of Resident – purchase of smart phone

The Complainant contends that the Respondent restricted the use of a resident’s private funds by refusing to buy him a smartphone, which he asserts constitutes neglect and a breach of HIQA policy. He said that he raised multiple protected disclosures about purchasing a smartphone.

The Court heard that the purchase of a smartphone was contrary to the resident’s care plan, which the Complainant was directed to follow, and that his continuing engagement with the resident about a smartphone was damaging and displayed the uncooperative nature of the Complainant.

To constitute a protected disclosure under the Act that there must be a disclosure of relevant information that tends to show a wrongdoing. The Complainant provided no evidence to support his assertion that he disclosed information about a relevant wrongdoing in relation to the non-purchase of a smartphone. The relaying of a request to purchase a smartphone is not a disclosure of information that shows a wrongdoing, and the Court finds that no protected disclosure was made by the Complainant in relation to that matter.

Finding:  Having regard to the above, the Court finds that no protected disclosure as defined by the Act was made by the Complainant about the purchase of a smartphone for a resident.

(ix)        Financial Irregularities

The Complainant gave evidence that he discovered financial irregularities on 15 May 2018, when there was an unexplained shortfall of €10 in a resident’s private wallet. He noted it in the expenditure record and contacted BM by phone. On 18 May his line manager crossed out his footnote and made a new calculation. He made a written report about that matter on 22 May 2018.

The Respondent disputes that the Complainant phoned BM about the matter on 15 May 2018, as she was on leave and her calls forwarded to another member of staff. The Respondent accepts that the Complainant informed the Director of Care, BM, about anomalies in a resident’s money during a review meeting. A financial audit was conducted, and no irregularities were uncovered. It asserts the reason €10 was missing was because a staff member had taken money with the resident’s permission to buy a personal item for him. The Complainant was not penalised for raising the issue.

Under cross examination the Complainant accepted that he was not penalised for raising concerns about financial irregularities.

On the face of it, the conveying of information about anomalies in resident’s money to the Director of Care is a disclosure of relevant information that tends to show wrongdoing, and as such may amount to a protected disclosure under the Act. However, the Complainant must have a reasonable belief of wrongdoing and, for reasons expanded on below, the Court did not find that the Complainant had a reasonable belief of wrongdoing in relation to financial irregularities. Furthermore, the Complainant’s own evidence was that he was not penalised for raising concerns about financial irregularities.

Finding:  Having regard to the above, the Court finds that no protected disclosure as defined by the Act was made by the Complainant in relation to financial irregularities.

Did the Complainant have a reasonable belief of wrongdoing?

Under the Act, there is a presumption that a disclosure is protected until proven otherwise.  However, there is an obligation on the Complainant to establish the existence of a protected disclosure.  The test for whether a communication is a protected disclosure is whether relevant information is disclosed that the worker reasonably believes tends to show a relevant wrongdoing by the employer.

The Court’s view on what may have occurred does not invalidate a belief on the part of the Complainant of a genuine wrongdoing on the part of the employer at the time.

A disclosure of alleged wrongdoing may be reasonable even though it is ultimately found to be unsubstantiated. In Babula v Waltham Forest College [2007] ICR 1026 the UK Court of Appeal determined that the fact that an employee may be wrong in their belief is not relevant, provided their belief is reasonable and the disclosure to their employer made in good faith. 

“Provided his belief (which is inevitably subjective) is held by the Tribunal to be objectively reasonable, neither (1) the fact that the belief turns out to be wrong – nor, (2) the fact that the information which the claimant believed to be true (and may indeed be true) does not in law amount to a criminal offence - is, in my judgment, sufficient, of itself, to render the belief unreasonable and thus deprive the whistle blower of the protection afforded by the statute.”

In Barrett v the Commissioner for An Garda Siochana and the Minister for Justice and Equality [2022] IEHC 86 Justice Stack noted: -

“The key question therefore would appear to be not whether the allegation was true (which it was not) but whether the plaintiff had a “reasonable belief” in the truth of it.  As belief must be “reasonable”, it is not sufficient for him to believe it: there must be some reasonable or objective basis for believing it” (para 133).

In applying these tests, the Court must assess if objectively, based on the facts, the Complainant’s belief in relation to the allegations that he made were reasonable and made in good faith.

The Complainant held and expressed strong views about how work in the Respondent service should be carried out. He said that he was the only care assistant who recognised the needs of certain residents and gave lengthy accounts of how he felt he knew better ways of doing things. He took grave exception to criticism of his work. However, expressing strong opinions or disagreeing with the way work should be carried out does not amount to a protected disclosure under the Act.

The role of the Court is to determine whether it was objectively reasonable for the Complainant to believe in the wrongdoings that he alleges occurred during his employment with the Respondent.

The Court did not hear evidence from the Director of Care, BM, to refute many of the allegations made by the Complainant. Notwithstanding that fact, when weighing up the Complainant’s own evidence the Court was struck by inconsistencies and anomalies in his testimony that call into question his credibility about whether he had a reasonable or objective basis for believing that relevant wrongdoings occurred during his employment with the Respondent.

The Complainant wavered in his evidence and frequently contradicted himself. He said that his memory was gone after five years. However, the passage of time does not adequately explain the level of contradiction in his own testimony. For example, he said that he provided a resident with a smartphone, but then denied that fact. He said that residents had left on the daycare bus by 8:00am on 3 March 2018, but subsequently accepted that there was no daycare that day due to heavy snow.

It is not clear to the Court how documents relied upon by the Complainant containing sensitive personal data about residents came to be in his possession. The Respondent contends they were illegally obtained and/or fraudulently created after the event. The Court found that the Complainant’s testimony when it came to explaining the origin of those documents lacked credibility. At the WRC hearing he claimed to have found some documents in a rubbish bin. His testimony to the Court was that he was entitled to documents because of his data access request, but then asserted that he made photocopies in May because it was important to record his protected disclosures. The Court also had concerns that the Calcichew data sheet relied upon by Complainant was modified in some way.

Furthermore, the Court found much of the Complainant’s evidence about alleged penalisation to be contradictory or implausible. He said that he was not on probation, yet he subsequently accepted that he was. He asserts that the Respondent tried to discredit him and cover up their own negligence yet accepted that he was subject to regular review meetings where he was informed of his shortcomings and placed on performance improvement plans. The Court did not find his testimony that he signed documents under duress admitting to those performances issues to be credible.

The Complainant contends that he was penalised when he failed his SAM medication exam and sought to rely on the marking system for the State Leaving Certificate Examination to assert that he had passed. The Complainant contends that he was further penalised when his hours were cut, and work location changed but accepts that he was a relief worker employed on variable hours and that he was not transferred to Drogheda as punishment. He accepted that he was never penalised for raising matters relating to financial irregularities.

The Complainant was dismissed from his employment on 20 June 2018 for failing to engage effectively with residents. He contends that his efforts to appeal that decision were ignored but could not reconcile why the tracking receipt for his appeal letter was sent by registered post to a location in Northern Ireland, rather than the Respondent’s address.

In weighing up the evidence before it, the Court had serious doubts about Complainant’s testimony in relation to the above matters, which in turn casts doubt on his credibility and whether he ever had a reasonable belief that tended to show relevant wrongdoings in the Respondent’s service.  In the Court’s view, the more likely scenario is that he was dissatisfied that his employment was terminated during his probation period.

In the view of the Court, the Complainant’s own testimony calls into question his credibility and as a result the Court concludes that the Complainant did not have a reasonable or objective basis for believing that relevant wrongdoings occurred.

The Court must satisfy itself that the Complainant’s belief in relation to a relevant wrongdoing was a reasonable one. Objectively on the facts in this case, the Court is of the view that the Complainant has not satisfied that test and that he did not have a reasonable belief that relevant wrongdoings had occurred.

For the reasons set out above, the Court finds that the Complainant has failed to establish that he disclosed relevant wrongdoings during his employment, and accordingly has failed to establish that he made a protected disclosure within the definition set out in Section 5 of the 2014 Act at that time. It follows that the Complainant was not penalised for making a protected disclosure.

The Court determines that no relevant wrongdoing as defined by the Act has been identified and no protected disclosures made.

In such circumstances the Court determines that the within complaints are not well founded.

The decision of the Adjudication Officer is upheld.

The Court so determines.

	Signed on behalf of the Labour Court
	Katie Connolly
TH	______________________
31 July 2024	Deputy Chairman

NOTE

Enquiries concerning this Decision should be addressed to Therese Hickey, Court Secretary.