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FULL RECOMMENDATION
PARTIES : OAKLODGE FOSTERING LTD DIVISION :
SUBJECT: 1. Appeal Of Adjudication Officer Decision No(S) ADJ-00019117 CA-00024996-02 Background The Complainant commenced employment with the Respondent as a Placement Support Worker on the 6th July 2014 and resigned her employment in circumstances she claimed amounted to constructive dismissal on 3rd November 2018. The Complainant worked 14 hours a week over two days and her hourly rate was €22. The Complainant submits that she made a disclosure of a relevant wrongdoing and that she was penalised for doing same. The Respondent disputes that the Complainant made any such disclosure and or that she was penalised. The Complainant lodged her complaint with the WRC on the 14th January 2019. The cognisable period under the Act is 15th June 2018 to 14th January 2019 Summary of the Complainant’s submission and evidence. In September 2017 the Complainant returned to work following a period of Maternity leave. Shortly after her return there was a HIQA inspection which identified a number of issues that needed to be rectified. The Respondent undertook to assign a Quality Control Manager to assist with addressing the concerns. The Complainant in her evidence submitted that she raised a number of concerns with her supervisor Dr Bankes at a meeting she had with him, at his house at 2.00pm on the 27th April 2018. It was her evidence that she asked to meet with him and was driven to the meeting by her husband. In support of her contention that she had such a meeting she submitted a photocopy of the relevant page from her diary which contained some scribbled notes. It was the Complainant’s evidence that she raised the following health and safety concerns; that in respect of Supervision the requirements for same were being ignored, placements were ending, Oaklodge was neglecting the foster carers and that there were implications in terms of health and safety and that the Respondent was not providing high level support on an as and when needed basis. It was the Complainant’s evidence that she never received minutes of the meeting and she did not know if Dr Bankes took minutes. Summary of the Respondent’s submission and evidence. It is the Respondent’s submission that the Complainant did not raise any Health and Safety issues with them. The issues she referenced were raised by HIQA in January 2018 and the organisation was working on addressing the issues. A copy of the HIQA report was submitted by the Respondent in support of their position. Dr Bankes Director of Oaklodge Fostering Limited gave evidence that he did not recall a meeting in his house with the Complainant on the date stated. Dr Bankes acknowledged that from time to time staff would call to his house. The Law The Act at Section 27 in relevant part provides as follows: Protection against dismissal and penalisation. 27.(1) In this section “penalisation” includes any act or omission by an employer or a person acting on behalf of an employer that affects, to his or her detriment, an employee with respect to any term or condition of his or her employment. (2) Without prejudice to the generality of subsection (1), penalisation includes— (a) suspension, lay-off or dismissal (including a dismissal within the meaning of the Unfair Dismissals Acts 1977 to 2001), or the threat of suspension, lay-off or dismissal, (3) An employer shall not penalise or threaten penalisation against an employee for— (a) acting in compliance with the relevant statutory provisions, (b) performing any duty or exercising any right under the relevant statutory provisions, (c) making a complaint or representation to his or her safety representative or employer or the Authority, as regards any matter relating to safety, health or welfare at work, Subsection 3 of Section 27 prescribes the circumstances in which penalisation is rendered unlawful under the Act. It provides: - (3) An employer shall not penalise or threaten penalisation against an employee for (a) acting in compliance with the relevant statutory provisions, (b) performing any duty or exercising any right under the relevant statutory provisions (c) giving evidence in proceedings in respect of the enforcement of the relevant statutory provisions (d) giving evidence in proceedings in respect of the enforcement of the relevant statutory provisions (e) being a safety representative or an employee designated under section 11 or appointed under section 18 to perform functions under this Act, or (f) subject to subsection (6), in circumstances of danger which the employee reasonably believed to be serious and imminent and which he or she could not reasonably have been expected to avert, leaving (or proposing to leave) or, while the danger persisted, refusing to return to his or her place of work or any dangerous part of his or her place of work, or taking (or proposing to take) appropriate steps to protect himself or herself or other persons from the danger. Discussion and conclusions The Court’s jurisdiction in the within matter is confined to determining whether, within the meaning of Section 27 of the Act, actions of the Respondent amounted to prohibited penalisation. The Court has approached the within matter on the basis of first determining whether a protected act within the meaning of the Act at Section 27(3) was committed. The Court having read the submissions of the parties and heard the evidence of the witnesses concludes that, in respect of the meeting submitted to have occurred on the 27th April 2018, the Complainant did not, in accordance with the Act at Section 27(3) make a complaint to her employer or safety representative as regards a matter relating to safety, health or welfare at work. On that basis the Complainant’s appeal must fail. The Decision of the Adjudication Officer is upheld. The Court so decides.
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