Complainant

Respondent

Parties

Marian  Nowak

Moorechall Disability Service T/A Mooechall Living

Representatives

  N/A

Paula Walshe Arag Legal Protection Limited

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-00055352-001

01/03/2023

The Complainant was employed as a Care Assistant by the Respondent from 16 February 2018 to 20 June 2018, when his employment was terminated.    

He stated that on 27 January 2023 and 15 June 2023, the Respondent penalised him as a result of protected disclosures he made when he was employed by them. Specifically, he stated that they made a number of untrue allegations against him.

The Complainant was employed as a Care Assistant from 16 February 2018 to 20 June 2018 when his employment was terminated.    

He stated that on 27 January 2023 and 15 June 2023, the Respondent penalised him because of protected disclosures he made when he was employed by them. Specifically, it was alleged that he had both stolen and fraudulently amended documentation and had engaged in criminal behaviour, which he disputes.

The Respondent disputed that the Complainant had made any protected disclosures during his period of employment with them. It was also asserted that the Complainant had unlawfully and in a wholly inappropriate manner obtained private, confidential and deeply personal information in relation to the residents of the Respondent’s organisation.

Relevant Law

The relevant statute is the Protected Disclosures Act, 2014 as amended by the Protected Disclosures (Amendment) Act 2022 of which section 5 in relevant part defines a protected disclosure as follows:

5. (1) For the purposes of this Act “protected disclosure” means, subject to “subsections (6) and (7A) 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 a breach has occurred, is occurring or is likely to occur, or

(i) that information tending to show any matter falling within any of the preceding paragraphs has been, is being or is likely to be concealed or destroyed or an attempt has been, is being or is likely to be made to conceal or destroy such information

(5) A matter is not a relevant wrongdoing if it is a matter which it is the function of the worker or the worker’s employer to detect, investigate or prosecute and does not consist of or involve an act or omission on the part of the employer.

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

(7) Subject to subsection (7A), 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.

Findings

The Complainant provided details of multiple disclosures that he contends are protected disclosures for the purposes of the Act. The Respondent highlighted that the WRC had previously decided in ADJ 16805 that each of these alleged wrongdoings were not protected disclosures for the purposes of the Protected Disclosures Act, 2014 and that a Labour Court decision was awaited by the parties following an appeal by the Complainant of the WRC decision.

Given the conflict between the parties on this particular point, I must firstly decide if the Complainant made protected disclosure as defined by the Act.

Having reviewed the Labour Court decision of 31 July 2024 and having regard to the Protected Disclosures (Amendment) Act 2022, I find, in line with the Labour Court decision, that the Complainant did not disclose 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 Protected Disclosures Act, 2014 as amended by the Protected Disclosures (Amendment) Act 2022. It follows therefore that the Complainant was not penalised for making a protected disclosure after he left the Respondent’s employment.

I find that this complaint is not well founded for the reasons set out above.