ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00047357

Parties:

Complaint:

Date of Adjudication Hearing:  30/11/2023

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 andSchedule 2 of the Protected Disclosures Act 2014, following the referral of the complaint  to me by the Director General, I inquired into the complaint  and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint

Background:

The complaint is that the Complainant was penalised for having made a protected disclosure.

Summary of Complainant’s Case:

By complaint received 21 August 2023, the Complainant lodged a claim under Schedule 2 of the Protected Disclosures Act 2014 alleging penalisation. In the body of the complaint form, the Complainant states:

“I wish to make a complaint in relation to the mishandling of my protected disclosure which I lodged in 2018. The ‘T’ consultancy firm carried out a full investigation and compiled a report into my protected disclosure complaint, regarding an alleged breach in the application of the Health Service Executive Grievance and Disciplinary Procedure. The T consultancy upheld all the issues raised in my protected disclosure. Mr T stated in his letter dated 14/10/22 – “It would be a matter for Ms N to finalise the investigation report”. Mr T also stated that “Without any unforeseen delays the process should be completed within the next three to four weeks”. I have not heard from Ms N since April 2022 which is 16 months ago. I am meant to receive periodic updates which has never happened before or after the investigation. This is an inordinate length of time for the commissioning manager to compile her report. The other part of my protected disclosure refers to the safety concerns in relation to a patient. I was told by Ms N that I will not be interviewed about the patient because I am not the next of kin. The HSE is using this excuse to prevent me from being interviewed in relation to the patient. I fail to see what relevance my lack of familial relationship to the subject matter (i.e. patient) of the protected disclosure is, particularly in circumstances where I was caring for the patient. If I am not interviewed, then the protected disclosure cannot be finalised. I am waiting five years to be interviewed. It seems that no one in the HSE can make a protected disclosure unless you are next of kin to a patient, as stated by the HSE. The reason I am applying to the WRC now is because I was naively waiting for the process to be finalised within a normal timeframe, I hope the adjudicator will look favourably on my application for extension.”

By written submission the Complainant submitted:

Following an investigation into the grievance aspect of my Protected Disclosure by T Consultancy, which was the external company appointed by the HSE, I received an email on 14/10/22 in which Mr. T stated that “we envisaged, without any unforeseen delays to be completing this process within the next 3 to 4 weeks. It will be a matter for the Commissioner to forward on the Final Report to the parties.” I naively was waiting for this report from Ms. N which I never received. Under the 2014 PD Act I was meant to receive periodic updates in relation to the investigation from Ms. N.  I didn’t receive any such updates either before or after the investigation and I never heard from T Consultancy again. The last contact I had from Ms. N was on 3/3/22 which was through my solicitor.  I haven’t heard from Ms N in 19 Months. Please note that T’s investigation was upheld in favour of myself.

I have asked on numerous occasions to be interviewed in relation to the patient referred to in my Protected Disclosure, in order to bring the process to a conclusion. However the HSE will not interview me in relation to the patient because they say I am not the next of kin, and I was told that I am not to discuss issues related to the patient. As stated by my solicitor in his letter to Ms N, “we fail to see what relevance [the Complainant’s] lack of familial relationship to the subject matter of the Protected Disclosure is? Particularly in circumstances where [she] was caring for the subject matter of the Protected Disclosure”.

I have been waiting 5 years to be interviewed, which has further delayed the whole process. I had a meeting with Ms. N on 25th August 2021 in which she stated the same thing, that “that I’m not the next of kin and I won’t be interviewed”. It appears that no one working in the HSE can make a Protected Disclosure in relation to concerns over a patient unless they are the next of kin or a relative, as stated in their letter dated 15/12/20 and 4/7/19.

Summary of Respondent’s Case:

It is submitted that the complaint is clearly out of time to take a penalisation claim. As confirmed by the Complainant, she made a protected disclosure in 2018. She had legal advice from 11 September 2019 when her solicitors wrote on her behalf in relation to various matters. The Complainant lodged two complaints on 21 May 2019. These complaints were under Schedule 2 of The Criminal Justice Act 2011. Following a hearing date in November 2019 at which the Complainant attended, the matter was adjourned for her to lodge submissions to deal with the Respondent’s preliminary point regarding the legislation. The case was set to resume on 16 April 2020 but the Complainant withdrew her claims in advance of that hearing date.

There are two aspects to the Complainant’s complaint. The first is stated to be the “mishandling” of the Complainant’s protected disclosure and the second relates to the Complainant’s belief that the second aspect of her protected disclosure cannot be finalised unless she is interviewed. There were two elements to the Complainant’s protected disclosure:

• The first element was related to Quality and Patient Safety; and
• The second element was related to HR issues.

In respect of the Quality and Patient Safety issues, an Independent Review was completed in August 2021. The Complainant was informed that this had been completed by letter dated 6 August 2021. She was not provided with a copy of the review as she was not the next of kin but she was informed that the Independent Review concluded that there was no evidence of neglect or substandard care.

It is submitted that if the Complainant is alleging penalisation arising from her not receiving the report, she had 6 months from the date she was informed the Independent Review had concluded to lodge a claim. Therefore, she had until 5 February 2022. Without prejudice to that, the Complainant confirms that her last contact with Ms. Neary was 3 March 2022. Even if the Adjudication Officer references this date, the time for lodging the claim is up until 2 September 2022.

Section 41(6) of the Workplace Relations Act 2015 sets out that the complaint must be lodged within 6 months from the date of penalisation to which the complaint relates. Therefore, the period that can be looked at by the Adjudication Officer is the period 6 August 2021 until 5 February 2022. The Complainant has applied to have the time extended.

The reason for the alleged failure to present the claim was the Complainant was waiting for the report from Ms. N which she never received. It is submitted that this does not either explain the delay or provide an excuse for the delay. Without prejudice to that position, it is submitted that even if the Adjudication Officer extends the time limit, the time period could only be extended to 5 August 2022. The complaint was not submitted until 21 August 2023 and therefore the Adjudication Officer does not have jurisdiction to hear this claim.

In relation to the HR aspect of her protected disclosure there was lengthy engagement with the Complainant as to how to progress this aspect of her protected disclosure. Ultimately, it was agreed that Mr. T would carry out an independent investigation. Mr. T’s investigation report issued in November 2022. The Complainant lodged her claim almost nine months later. In the circumstances it is submitted that the Adjudication Officer does not have jurisdiction to deal with the claim. The reasons given by the Complainant neither afford an excuse nor provide an explanation for the delay particularly in circumstances where the Complainant had ongoing legal advice for a number of years and had previously lodged complaints which were within time.

The Respondent addressed the substantive issue under burden of proof under the Protected Disclosure Act (as amended by the 2022 Act) and stated that this is governed by Section 12(7)(c), which provides that: "The penalisation shall be deemed … 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." It is submitted that this provision operates in a similar manner to that set out above regarding the penalisation under the Safety, Health and Welfare at Work Act. On that basis, the Claimant must first show a prima facie case of penalisation as a consequence of having made a protected disclosure.  Case law was presented in relation to the definition of penalisation.  It is contended that it is unclear what detriment the Complainant is alleging. It is submitted that the decision of Hyland J in Conway is relevant in the instant case and the detriment must cause harm or damage to the person making the claim of penalisation and there is no evidence provided by the Complainant relating to any detriment suffered by her.

Findings and Conclusions:

Time Limits

The complaint was received on 21st August 2023.

The Complainant has contended that she was penalised for having made a protected disclosure.  She did not clearly outline what the penalisation or detriment was as a result of making a protected disclosure or as in this case protected disclosures.  It appears that her complaint is that the Respondent ‘mishandled’ her disclosures and as she stated herself the reason I am applying to the WRC now is because I was naively waiting for the process to be finalised within a normal timeframe, I hope the adjudicator will look favourably on my application for extension.

She made two protected disclosures to the Respondent on 21st May 2019, as follows:

Protected Disclosure 1 – regarding quality and patient safety issue.  The Respondent stated that the report on this was completed on 6th August 2021.  The Complainant’s complaint is that she was not interviewed in relation to that investigation and that she was not given a copy of the report.  The Complainant contends that this investigation is not completed and she is aggrieved that she was not interviewed in relation to that particular investigation.

Protected Disclosure 2 - regarding an alleged breach in the application of the Health Service Executive Grievance and Disciplinary Procedure.  This was subject to an external investigation which concluded on 14th October 2022.

One of the Complainant’s complaints is that she had no contact from the Respondent in relation to this report since April 2022.  She stated herself in her complaint form “which was 16 months ago”. 

While I find that the Complainant has failed to clearly show what detriment she has suffered, arising from making a protected disclosure, it appears that her complaints centre around the lack of communication from the Respondent to her in relation to her two protected disclosures.  

 Section 41 (6) of the Workplace Relations Act 2015 provides:

“Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.

Since the complaint was received on 21st August 2023, the cognisant time period for consideration is from 22nd February 2023.   The Complainant sought an extension of time for consideration of her complaint which would bring the time period back to 21st August 2022.

Section 41 (8) provides:

“an adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause”.

While, as referred to above, the complaint is not clear as to the detriment suffered save the reference to the mishandling of her protected disclosures and the lack of communication from the Respondent, I have decided to look at the time limits as they refer to the two reports in her complaint and her contention that the Respondent failed to communicate with her in particular follow up in relation to them.  The main dates which are relevant to this instant case therefore are:

6th August 2021 and

14th October 2022.

As the 6th August 2021 is clearly outside the statutory time limits provided for in the Act, that complaint is out of time.  In considering whether the time limit in respect of the complaint which refers to 14th October 2022 can be extended, I note that the Complainant had the benefit of legal advice especially as evidenced by correspondence dated September 2019, submitted by her.  She was aware of the statutory time limits and failed to submit her complaints in time.  I do not find that reasonable cause exists to extend the time limits in this case.

I find that the complaint is out of time and is not well founded.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

I decided that the complaint is out of time and is not well founded.

Dated:   7th of February 2024

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

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