Complainant

Respondent

Parties

Deirdre Lally

Sunbeam House Services Company Limited By Guarantee t/a  Sunbeam House Services

Complainant

Respondent

Anonymised Parties

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Representatives

Kenny Sullivan Solicitors

 IBEC

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-00062236-001

14/03/2024

The Complainant, a Social Worker, gave evidence on Affirmation. It was her complaint that she was penalised by the Respondent after raising a protected disclosure. 

For the Respondent the following individuals gave evidence on Affirmation; Mr. Mark Cantwell, HR Manager, Ms. Fran Murphy, CEO and Mr. Stephen Kearns Senior Service Manager. Mr. John McCormack, former CEO, gave evidence on Oath.

It was accepted by the Respondent at the outset of the hearing that a protective disclosure was made by the Complainant, but she was not penalised.

It was the Complainant’s evidence that she loved her job.

it was her evidence that she had flagged these issues with Mr. Cantwell in January 2024, and it was his decision not to address them.

The Complainant gave 5 weeks’ notice as per contract for employment. She confirmed she was paid in lieu of notice.

She explained that during this time she undertook a handover of files to her colleagues.

It was her evidence that she was left feeling extremely distraught that she did not get to say goodbye to her clients. She felt that she was being “pushed out the door” and penalised. It was her evidence that she continues to feel that way.

The Complainant stated that the protected disclosure she raised was not about her but about the practices of the Respondent. She found the email of 1 March 2024, putting her on administrative leave, very upsetting.

It was her evidence that the investigation commenced by the Respondent into the protected disclosure was still ongoing at the time of the hearing.

Cross-Examination

Under cross-examination, it was put to the Complainant that her exit interview took place on 22 November 2024 and why she had waited until that interview to raise her complaints. In response, the Complainant said she did not want to go down the grievance route. She wanted to meet with everyone individually to discuss the issues with them.

The Respondent, referring to their submissions and the minutes of the meeting with Mr Cantwell on 29 January 2024, put it to her that an agreed action was that she would put her grievances down in writing. The Complainant again replied that she did not want to raise a grievance.

The Complainant was asked how she was penalised. It was her evidence that she was asked to go on administrative leave, which was penalisation when she raised the protected disclosure. It was her evidence that she felt she left under a cloud, as if she had done something wrong.

The TIC procedure was read out to the Complainant:

“These protective measures are not disciplinary measures and may include putting the employee off duty with pay pending the outcome of the investigation.”

It was the Complainant's response that she felt she was penalised. In her view, she expected that the disclosures would be discussed and further explored with her.

It was put to her that the policy states that these are “precautionary measures.” The Complainant replied that this was how she felt.

Re-Examination

The Complainant, in re-examination, was asked whether she had an opportunity to tell her colleagues during her notice period that she was leaving. It was the Complainant’s evidence that she did not have sufficient time to inform her colleagues of her departure or say goodbye to her clients.

Upon inquiry, the Complainant was asked whether the fact that she did not have a going-away party was an example of penalisation. The Complainant confirmed that it was, as she did not have an opportunity to say goodbye to many of her clients. She outlined the strong relationships she had built with her clients and stated that she did not have an opportunity to properly say goodbye.

The Complainant commenced employment with the Respondent on 10 April 2017 as a Social Care Worker. The Complainant resigned from her role on 2 February 2024. At the time of her resignation, the Complainant worked a 35 hours per week and earned €5,504.00 per month (€66,048 per year).

On 28 February 2024, the Complainant attended an exit interview with HR where she raised safeguarding issues and concerns and named several employees, including members of the senior management team.

It was the Respondent’s position that due to the nature of allegations; it invoked its Trust in Care (TIC) Policy and Procedure. In accordance with the policy and placed the Complainant on paid leave for the remainder of her employment effective from 1 March 2024. Her final date of employment was 8 March 2024.

Mr Mark Cantwell, HR Manager

It was Mr. Cantwell's evidence that he had a meeting with the Complainant on 29 January 2024, where she explained that she felt her cases had been removed because of issues she had raised. Mr. Cantwell stated that she was unhappy about this, as she felt they were wrongfully taken from her, and she wanted to progress a complaint. They spoke for approximately 30 minutes. As an agreed action from the meeting, Mr. Cantwell offered her the grievance procedure and asked her to document her grievances clearly in writing.

It was Mr. Cantwell’s evidence that he did not have any further contact from the Complainant until her exit interview on 28 February 2024. He was asked whether the matters raised by the Complainant during the exit interview were a cause for concern. In response, he stated that there were serious safeguarding allegations, which he reported to senior management. He outlined the procedure set out in the TIC Policy, including a review of the complaints to determine whether they fell within the scope of safeguarding. Referring to the procedure, he read: "These protective measures are not disciplinary measures and may include putting the employee off duty with pay pending the outcome of the investigation."

It was Mr. Cantwell’s evidence that this practice was standard under the TIC, Protected Disclosure, and Dignity at Work Procedures. He confirmed that paid leave was not a disciplinary sanction nor a suspension with pay, which was an entirely separate policy and procedure. He explained that it was standard practice to restrict an employee’s access to their phone or laptop as a protective measure and that he advised the Complainant of this.

It was also Mr. Cantwell's evidence that an external investigator had been appointed but that he was not involved in the process. He explained that a liaison person within the Respondent’s organization was designated to engage with the investigator. In conclusion, he stated that the matter was “entirely out of his hands.”

It was put to Mr. Cantwell that the Complainant claimed she was penalised for raising these complaints. In response, he stated that this was not the case, and that the Complainant was complaining about not having a farewell party.

Regarding the protected disclosures made by the Complainant, Mr. Cantwell’s evidence was an external investigator was carrying out the investigation, which remained ongoing.

Mr. Cantwell was also questioned about the allegation that the Complainant was not informed of the Team Lead role in November 2023. He stated that the advertisement for the role was sent to all staff and remained open until 2 December 2023. He did not recall any specific conversation with the Complainant about the role, nor did she apply, attend an interview, or receive a formal offer.

Cross-Examination

Mr. Cantwell was asked about his understanding of the 29 January 2024 meeting with the Complainant. He stated that he had an open-door policy and that the meeting was not prearranged.

His evidence was that he was not the appropriate person to receive a protected disclosure, as there was a specific procedure in place. He acknowledged that the Complainant was unhappy in her role and that there had been issues.

When asked if he had followed up on these issues, he stated that he had not. He reiterated that the action arising from their January meeting was for the Complainant to submit a written grievance. Asked whether he was content to leave the matter at that, he stated that it was entirely up to the Complainant to decide how to proceed. He noted that they had discussed the quickest way to resolve her concerns, and he suggested the informal grievance procedure, but she declined to pursue that option as she had already spoken to her manager. He subsequently received her resignation letter.

Mr. Cantwell was questioned about the exit interview notes. He stated that he had reviewed them with the CEO and, given the nature of the concerns raised, recommended the appointment of an external investigator. When asked whether this was the norm for handling protected disclosures, he replied that some of the allegations were against Ms. Murphy. Asked whether that was appropriate, he explained that, as Ms. Murphy was the Complainant’s line manager, this was a key reason for recommending an external investigator.

When asked whether he considered the matters raised by the Complainant to be a protected disclosure at the time, he stated that he did not. He understood them to be a grievance. It was his evidence that the Complainant should have used the correct procedure for protected disclosures and submitted it to the CEO.

It was put to him that he did not seem to have considered the matters raised in January 2024 to be serious enough to escalate to the CEO. In response, he stated that triggering any process without a written complaint from the Complainant would have been a breach of policy. He explained that it was the responsibility of the employee, in this case, the Complainant, to put her concerns in writing. He stated that their discussion in January primarily related to her caseload management and matters falling under the Dignity at Work Policy.

Asked why the Complainant was placed on administrative leave, Mr. Cantwell explained that protective measures were put in place as needed, based on a review of the disclosures. He stated that he reviewed the notes with the CEO and made the decision to place the Complainant under protective measures where there was a potential for contact.

Upon inquiry, Mr. Cantwell was asked how many days the Complainant spent on administrative leave between her exit interview and her last day of employment. He replied that it was four days.

He was also asked whether the Complainant had received the relevant policy. It was his evidence that the policy was reviewed in May and November 2023 and was communicated to all staff through an internal portal, where it always remained accessible. However, it was noted that there was no record of the Complainant having acknowledged or read it.

Ms. Fran Murphy, CEO

Ms. Murphy evidence was she commenced her position as CEO in November 2023. Around this time, she had several discussions with the Complainant regarding the TIC policy. A serious allegation had been made in November 2023, and issues arose regarding the Complainant’s handling of the complaint and failure to follow the correct procedure. Ms. Murphy described having “robust discussions” with the Complainant in a professional context regarding her decision not to follow the correct procedure. She recalled minutes being taken at the meeting. The Complainant was not sanctioned or disciplined as a result.

Ms. Murphy’s evidence was that the Complainant was instructed to close the case with the third party. Asked whether this instruction was intended as a threat or penalty, Ms. Murphy replied, “No, absolutely not.”

She described another instance in which she had to instruct the Complainant to withdraw a complaint to the HSE. In response, the Complainant sent an email copying multiple recipients, stating that she was told to withdraw it by the CEO. Ms. Murphy called the Complainant upon receipt of the email to explain that this was inappropriate. When asked whether this phone call was an act of penalisation, Ms. Murphy again replied, “No, absolutely not.”

Ms. Murphy was asked about Mr. Cantwell’s decision to place the Complainant on paid leave following her exit interview. It was her evidence that she viewed it as a “supportive measure” and that the Respondent did not want to place the Complainant in a difficult position, as the complaints related to individuals she worked with.

Ms. Murphy stated that an external investigator was appointed shortly thereafter, and her only involvement was to seek status updates. She clarified that she was not directly involved, but the Chair of the Board was monitoring the process.

Cross-Examination

When asked whether she considered placing the Complainant on paid leave to be penalisation, Ms. Murphy stated that the safeguarding process followed national policy and that every step was documented in a software system. She noted that there were no allegations of penalisation raised during the exit interview.

She explained that delays in the investigation were due to the external investigator’s personal circumstances. The investigator had been engaged in March 2024, but the process only commenced three weeks before the hearing. It was her evidence that no one was unsafe, though she acknowledged that she had not initially been aware of the delay.

When asked whether she viewed the Complainant as a nuisance, Ms. Murphy responded, “Absolutely not.” It was put to her that she wanted the Complainant gone after reviewing the exit interview. She replied, “No, I was aware she was moving on from her role. We didn’t want to lose a Social Worker.”

Mr. Stephen Kearns, Senior Service Manager, gave evidence that the outcome of a safeguarding meeting in November 2023 was not intended to penalise the Complainant.

Mr. John McCormack, Interim CEO (March 2023 – December 2023), gave evidence that the Complainant was not offered the Team Lead role.

The Protected Disclosures Act 2014 (as amended) provides that 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.

In this instance the Respondent accepted a protected disclosure was made by the Complainant.

Section 12 of the Act, makes it unlawful for an employer to penalise an employee for making a protected disclosure:

“(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.”

Penalisation is defined as to mean any act or omission that affects a worker to the worker’s detriment and includes as follows:

(a) suspension, lay-off or dismissal,

(b) demotion, loss of opportunity for promotion or withholding of promotion,

(c) transfer of duties, change of location of place of work, reduction in wages or change in working hours,

(d) the imposition or administering of any discipline, reprimand, or other penalty (including a financial penalty),

(e) coercion, intimidation, harassment, or ostracism,

(f) discrimination, disadvantage, or unfair treatment,

(g) injury, damage, or loss,

(h) threat of reprisal,

(i) withholding of training, (j) a negative performance assessment or employment reference, (k) failure to convert a temporary employment contract into a permanent one, where the worker had a legitimate expectation that he or she would be offered permanent employment, (l) failure to renew or early termination of a temporary employment contract,

(m) harm, including to the worker’s reputation, particularly in social media, or financial loss, including loss of business and loss of income,

(n) blacklisting on the basis of a sector or industry-wide informal or formal agreement, which may entail that the person will not, in the future, find employment in the sector or industry,

(o) early termination or cancellation of a contract for goods or services,

(p) cancellation of a licence or permit, and

(q) psychiatric or medical referrals;

The Labour Court in O’Neill v. Toni and Guy Blackrock Limited [ELR21] considered in detail the matter of a causative link as follows:

“It is clear from the language of this section that in order to make out a complaint of penalisation it is necessary for a claimant to establish that the detriment of which he or she complains was imposed “for” having committed one of the acts protected by Subsection 3.  Thus, the detriment giving rise to the complaint must have been incurred because of, or in retaliation for, the Claimant 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 Claimant 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 determent”.

The word “detriment” was also considered by the Labour Court and relied on Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] 2 All E.R. 26 which is the authority for the “proposition that 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 circumstances, to his or her detriment”.

Having carefully considered the evidence presented by both parties and, in particular the TIC policy, it is clear that there are grounds for placing the Complainant off duty while being paid. The explanation put forward by the Respondent is accepted as being entirely reasonable, given that the disclosures involved the Complainant’s superiors. It is accepted that this was a protective measure for the Complainant herself and not in any way aimed at penalising her.

Despite the Respondent’s evidence on the allegation that the Complainant was penalised in her application for Team Lead, the Complainant herself did not give any direct evidence of this complaint. Similarly, the Complainant did not give evidence regarding the meeting of November 2023 and the instruction from the CEO in relation to the email to the HSE. Consequently, where there is no direct evidence from the Complainant, these matters simply cannot be considered as part of this complaint.

While it is entirely understandable that the Complainant wanted to say goodbye to her clients and colleagues, the period of protected leave accounted for only four days out of a five-week notice period. This cannot be objectively considered a detriment.

For the reasons set out above I find the complaint of penalisation pursuant to Schedule 2 of the Protected Disclosures Act, 2014 to be not well-founded.

Penalisation – Protected Disclsoure