SECTION12(2), PROTECTED DISCLOSURES ACT, 2014
AIDAN & HENRIETTA MC GRATH PARTNERSHIP
(REPRESENTED BY PURDY FITZGERALD SOLICITORS)
- AND -
(REPRESENTED BY PETER DALY BL INSTRUCTED BY KILFEATHER & COMPANY SOLICITORS)
Chairman: Ms Jenkinson
Employer Member: Ms Cryan
Worker Member: Ms Tanham
1. Appeal Of Adjudication Officer Decision R-151162-PD-14/SR
2. The Worker appealed the decision of the Adjudication Officer to the Labour Court on the 12 May 2015. A Labour Court hearing took place on 6 April 2016 and was resumed on 9 August 2016. The following is the Court's Determination:
This is an appeal by Ms Anna Monaghan against the Decision of a Rights Commissioner (now known as an Adjudication Officer) in her claim of penalisation against her former employer Aidan & Henrietta McGrathPartnership under Section 12(1) of the Protected Disclosures Act, 2014 (the Act). The Adjudication Officer held that Ms Monaghan’s issues with her employer were not related to any “protected disclosures” as defined by the Act and accordingly held that there was no “penalisation” as defined by the Act.
For ease of reference the parties are given the same designation as they had at first instance. Hence Ms Anna Monaghan will be referred to as “the Complainant” and Aidan & Henrietta McGrathPartnership will be referred to as “the Respondent”.
The Complainant was employed as a Care Assistant with the Respondent from 17thAugust 2010. Her employment terminated on 5thDecember 2014.
Aras Chois Fharraige Nursing Home is based in Co. Galway and was established in its current format by the Respondent in 2009. It cares for 42 residents and has 40 employees.
The claim was referred to the Labour Relations Commission (now known as the Workplace Relations Commission) on 14thNovember 2014.
Summary of the Complainant’s Case
Mr Peter Daly, B.L., instructed by Kilfeather & Company, Solicitors, on behalf of the Complainant submitted that the Complainant made a protected disclosure to the Respondent and to the Health Information and Quality Authority(HIQA), in consequence of which she was penalised by being intimidated, bullied, alienated, harassed, victimised and placed on suspension and that these actions constituted penalisation of her within the meaning of Section 12 of the Act.
Mr Daly stated that the Complainant made a number of telephone calls to HIQA to report matters which she considered were having a serious and detrimental effect on patients at the Respondent’s nursing home. He said that these calls were made on the following dates:- 28thMarch 2014; 31stMarch 2014; 2ndApril 2014; 7thApril 2014 and 1stMay 2014. He submitted that the Respondent became aware that the Complainant had made these calls when HIQA visited the nursing home on 14thMay 2014.
Furthermore, at a meeting with the Respondent on 29thApril 2014, the Complainant outlined details to management of alleged wrongdoings regarding patient care. Mr Daly submitted that these events come within the definition of “protected disclosures” within the meaning of the Act. He said that the Complainant informed her colleagues at a meeting on 4thApril 2014 that she had disclosed information to HIQA and that the Complainant herself had informed management of this when HIQA visited the nursing home on 14thMay 2014. He said that as a result of these protected disclosures the Complainant was subjected to penalisation by the Respondent.
Therefore, Mr Daly submitted that there was a causal link between the protected disclosures and the detrimental treatment the Complainant was subjected to in the aftermath of the visit by HIQA at the nursing home on 14thMay 2014.
Summary of the Respondent’s Position
The Respondent was represented by Purdy Fitzgerald Solicitors. Mr Alastair Purdy represented the Respondent on the first day of the hearing before the Court and Ms Síobhan McGowan represented the Respondent on the second day.
Mr Purdy referred to the complaint made by the Complainant’s representative to the Labour Relations Commission dated 13thNovember 2014, in which it referred to the disclosure made to the employer on 5thMay 2014 and the penalisation complained of which consisted of (a) suspension from duty on basic pay only from 20thJune 2014 to 7thNovember 2014 and (b) suspension without pay from 7thNovember 2014. Mr Purdy submitted that the letter dated 5thMay 2014 referred to the Respondent was in reality a grievance complaint made by the Complainant rather than a “protected disclosure”. In addition he submitted that the issues raised in that letter do not come within the definition of “relevant wrongdoings” as defined by Section 5(3) of the Act. Therefore he contended that the Complainant had failed to satisfy the requirements of the Act.
Notwithstanding the above he contended that the suspensions (which he said were paid suspensions) referred to were entirely unrelated to her alleged protected disclosure. He said that the first period of suspension arose on foot of the findings of an investigation carried out to examine,inter alia, the complaints she referred to in her letter dated 5thMay 2014. Mr Purdy stated that the investigator’s report found that a number of the persons interviewed had indicated that the Complainant might have been motivated by malice when she made her complaints regarding the conduct of a fellow colleague. The report recommended that the allegations of malice should be the subject of a further investigation and in the meantime the Complainant should be suspended. Mr Purdy said that in order to facilitate this investigation and in line with the Respondent’s best practice, the Complainant was suspended on pay.
He said that the second period of suspension arose as the Complainant unreasonably refused to furnish the Respondent with various pieces of documentation in order to comply with applicable legal and regulatory matters including the Health Act 2007 (Care and Welfare of Residents in Designated Centres for Older Persons) Regulations 2013.
In summary, Mr Purdy submitted that there was no causal link between the alleged protected disclosures and the periods of suspension. He submitted that the allegations of intimidation, bullying, alienation, harassment and victimisation were not included in the original claim but had been “added” to the claim during the hearing before the Adjudication Officer held on 16thFebruary 2015 and were accordingly out of time and therefore statute barred.
Evidence was given under oath on behalf of the Complainant by the following:-
- The Complainant;
Ms Kathleen Larkin, colleague of the Complainant; and
Ms Kathleen Gallagher, colleague of the Complainant
Evidence was given under oath on behalf of the Respondent by the following:-
- Mr Aidan McGrath, Registered Provider
Ms Patricia Folan, Matron & Registered Person in Charge
The material facts as admitted by the parties or as found by the Court are as follows:-
On 30thMarch 2014 the Complainant advised the Matron of the difficulties with a named supervisor regarding her daughter’s hours (her daughter was a student Care Assistant in the nursing home at the time).
The Complainant also brought to the attention of the Matron certain concerns regarding the treatment of patients and asked for a meeting of care staff to discuss the matter. The Matron agreed to this. However, the Complainant organised a meeting of Care Assistants on 4thApril 2014 in a local pub, without the Matron’s knowledge. Between 6 and 8 Care Assistants attended the meeting. The issues discussed included reference to a named supervisor and her instructions regarding the care of residents. A number of days later when she became aware that a meeting had taken place, the Matron made enquiries of a number of those who attended, including the Complainant, as to the issues discussed at the meeting and was informed what had taken place.
The Complainant told the Court that after the meeting on 4thApril 2014 she was isolated and supervised in the course of her work having heretofore worked on her own. On 29thApril 2014 she was called to an appraisal meeting during which she was told that she was a trouble maker and should have followed procedures. She told the Court that the isolation continued after the appraisal meeting. The Complainant stated that she made a number of calls to HIQA including a call on 14thMay 2014, the day HIQA visited the nursing home.
The Registered Provider, Mr McGrath, told the Court that he decided to hold a meeting with the Complainant as the Matron was unable to resolve the issues she had discussed with the Complainant. He held a staff appraisal meeting with the Complainant on 29thApril 2014. During the first hour of the meeting, the discussion was focused on the issue of the Complainant’s daughter’s hours. The Complainant then raised concerns regarding the care of the residents and alleged abuse by the same supervisor. At this point in the meeting Mr McGrath decided to call the Matron in to the meeting and the meeting lasted a further hour discussing these issues. Mr McGrath asked the Complainant to put her concerns in writing which she did in a letter dated 5thMay 2014.
Mr McGrath told the Court that having received this letter, which was described as a grievance letter, in accordance with the required regulations he notified HIQA of the Complainant’s written complaint on 12thMay 2014. He completed NF06 form on 14thMay 2014 and emailed it to HIQA at 3.53pm that day, informing HIQA that it had initiated a Provider Lead Investigation into the matters raised in her grievance and had placed the alleged abuser on extended leave.
HIQA inspectors made an unannounced visit to the nursing home that evening at around 5.30pm.
The draft report of the Provider Lead Investigation was issued to the Complainant on 20thJune 2014, and she was invited to give comments on the report within four days. The report found that here were several allegations of malice from different staff members regarding the Complainant’s motivation in making the complaints and held that in the interest of fairness that this should be dealt with in a separate investigation. It recommended that as there was no evidence to substantiate the allegations made against the supervisor she should be recalled to work. In addition it recommended that the Complainant should be temporarily suspended on pay pending the further investigation.
By letter dated 20thJune 2014, from Ms Folan the Complainant was placed on suspension due to the recommendations made in the report and the issues raised during the investigation itself.
By letter dated 15thAugust 2014, the Complainant, along with all other staff, was requested to complete certain regulatory forms. When the Complainant failed to do so, further letters were sent to her on 29thSeptember 2014, 28thOctober 2014 and by 7thNovember 2014 when the Complainant had still not completed these forms, she was placed on suspension pending the outcome of a disciplinary meeting to be held on 14thNovember 2014.
The Protected Disclosures Act became law on 15thJuly 2014. The Act has retrospective effect, therefore a disclosure made before the date of the Act may be a protected disclosure. The Act provides for a tiered disclosure regime and encourages a worker to make a disclosure to his/her employer or a responsible person in the first instance. It provides that a worker may make a protected disclosure to his/her employer where he/she reasonably believes that information being disclosed shows or tends to show wrongdoing.
The Act defines a protected disclosure at Section 5 as follows:-
5. (1) For the purposes of this Act “protected disclosure” means, subject to subsection (6) and sections 17 and 18 , 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.
- 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.
(4) For the purposes of subsection (3) it is immaterial whether a relevant wrongdoing occurred, occurs or would occur in the State or elsewhere and whether the law applying to it is that of the State or that of any other country or territory.
(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.
(6) A disclosure of information in respect of which a claim to legal professional privilege could be maintained in legal proceedings is not a protected disclosure if it is made by a person to whom the information was disclosed in the course of obtaining legal advice.
(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.
Conclusions of the Court
- Protected Disclosure
- 12. (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.
The Court must first establish that a protected disclosure has been made before it can examine whether a penalisation within the meaning of the Act has occurred.
A Protected Disclosure as defined by the Act at Section 5 is a disclosure of relevant information. The Act at Section 2 clarifies that 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.
The Court was faced with a direct conflict of evidence on whether or not the Respondent was aware of the fact that the Complainant had made telephone calls to HIQA in the period from 28thMarch 2014 to 1stMay 2014. However, having considered the evidence, the Court is satisfied that it was accepted by both parties that at the appraisal meeting held on 29thApril 2014, the Complainant informed the Respondent of information concerning alleged wrongdoings regarding patient care which she reasonably believed was occurring within the nursing home and which had come to her attention in connection with her employment. These concerns related to alleged health and safety risks to residents. On that basis the Court is satisfied that the Complainant made a protected disclosure on 29thApril 2014 within the meaning of Section 5(3)(d) of the Act.
The Court must now consider whether or not she was penalised for having made such a protected disclosure.
The Act is a new piece of legislation with limited case law, however, the provisions regarding penalisation are broadly similar to those provided in the Safety Health and Welfare Act, 2005. As this Court pointed out inO’Neill v Toni and Guy Blackrock Limited E.L.R. 21, it is clear from the language of Section 27 of the 2005 Act that in order to make out a complaint of penalisation it is necessary for a complainant to establish that the detriment of which he or she complains was imposed“for”having committed one of the acts protected by Section 27(3) of the 2005 Act. Thus the detriment giving rise to the complaint must have been incurred because of, or in retaliation for, the Complainant 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 Complainant 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 detriment.
The Court is of the view that theToni and Guycase involved penalisation under the 2005 Act, nevertheless, the general principle enunciated in that case remains valid in the case under consideration.
- Allegations of Penalisation
(i)intimidation, bullying, alienation, harassment, victimisation
The Respondent submitted to the Court that certain allegations of penalisation, i.e. allegations of being intimidated, bullied, alienated, harassed, victimised were submitted out of time. The complaint to the Workplace Relations Commission did not refer to these allegations of penalisation. However, for the sake of completeness, the Court has considered the allegations.
The Court is satisfied that the meeting in the pub on 4thApril 2014 could not be held to be a protected disclosure to her employer or other responsible person within the meaning of Section 6 of the Act as there was such disclosure, it follows therefore that a complaint of penalisation could not be sustained in such circumstances. The telephone calls which the Complainant said she made to HIQA could come within the definition of protected disclosures, however, based on the evidence given by both sides, the Court is of the view that due to the conflicting evidence furnished it is not convinced that there is sufficient evidence to support the Complainant’s allegations that she was treated in such an alleged manner following either the making of such calls or the 29thApril 2014 meeting. Accordingly, there is no basis to conclude that penalisation occurred as outlined above.
- (ii)Suspension from 20thJune to 7thNovember 2014
The Respondent in its submission and in evidence before the Court unequivocally denied the allegations relied upon by the Complainant in advancing her case in regard to penalisation when she was placed on suspension from 20thJune 2014 and again on 7thNovember 2014. The Court notes that the investigator’s report was issued in its draft form and the parties were invited to make comments on it within four days.
The reference to malice in the report related to an allegation by the Complainant’s colleagues regarding her motives in making complaints of abuse and wrongdoings. The draft report contained a recommendation to the Respondent to temporarily suspend the Complainant pending a further investigation into the allegations of malice. The Court finds that the Complainant’s reporting of abuse and wrongdoings lead to the investigation being carried out, as a result of which the Complainant was placed on suspension on 20thJune 2014 on the day the draft report was circulated and before she had an opportunity to makes comments on its findings.
In her evidence to the Court Ms Larkin, a Care Assistant in the nursing home, said that when the Complainant was placed on suspension, she enquired of Matron when she would be returning to work. The Matron responded by saying “over my dead body will she be in this home again”. In her evidence the Matron disputed this contention and said that the response she gave was that the Complainant was not on duty and she had no idea when she would be back. On this point, the Court has to determine whether it prefers the testimony of Ms Larkin or that of the Matron. Ms Larkin impressed the Court as a reliable witness who gave her evidence honestly and to the best of her ability. When taken in the context of the evidence as a whole,there was also a consistency in her testimony which coincided with evidence given in other aspects of the evidence adduced. For that reason, on balance, the Courthas come to the conclusion that the testimony of Ms Larkin was more reliable.
The Court notes that no investigation into the allegations of malice took place. Mr McGrath said that the reasons for not conducting such an investigation were related to advice he received from the Complainant’s trade union representative in a letter dated 30thJune 2014, yet the Complainant continued on that suspension until 7thNovember 2014, when she was placed on further suspension for purported alternative reasons.
By letter dated 28thNovember 2014 the Respondent’s legal representatives wrote to the Complainant’s Solicitor’s to inform them that that having taken the time to consider the matter the Complainant had “no case to answer” in respect to the matters outlined in the investigator’s report and the matter was now at an end.
The question arises as to whether or not the Complainant would have been placed on suspension on 20thJune 2014 had it not been for the protected disclosure made to her employer on 29thApril 2014. In considering this question the Court must consider the motives which influenced the Respondent to place her on suspension at that time. While the Registered Provider advised the Court that HIQA would expect him to act on the investigator’s recommendations, the Court is of the view that the suspension of the Complainant by the Registered Provider was influenced by the complaints made by her prior to and in the course of the investigation. The undue haste which the suspension was effected without giving the Complainant an opportunity to comment on the report (having been invited to do so) and before the final report was issued on 15thJuly 2014 reinforces the Court’s view that there was a causal connection between the making of the complaints by the Complainant and her suspension. Finally, the comment made by the Matron to Ms Larkin is noteworthy in that it is illustrative of a mindset on the part of the Respondent towards the Complainant.
In such circumstances, the Court must find that the making of a protected disclosure to her employer was an operative reason for placing the Complainant on suspension from work for the period from 20thJune until 7thNovember 2014. The Court finds that the detriment giving rise to the complaint incurred because of, or in retaliation for, the disclosure of information related to the alleged abuse and alleged wrongdoings regarding patient care made by the Complainant on 29thApril 2014. For all of the forgoing reasons,the Court is satisfied that were it not for that complaint the Complainant would not have been placed on suspension.
- (iii)Suspension from 7thNovember 2014
Evidence was submitted to the Court by the Respondent to substantiate its position that the second period of suspension from 7thNovember 2014 was directly related to the Complainant’s failure to furnish it with various pieces of documentation as required to comply with applicable legal and regulatory matters as outlined above. To this effect, the Complainant had received a number of letters between 15thAugust 2014 and 28thOctober 2014 giving her a warning that if she did not complete the forms she would be liable to be placed on suspension pending the outcome of a disciplinary meeting to be held on 14thNovember 2014.
Although there was communication between the Respondent and the Union on the issue, the Complainant did not deny that such documentation was not furnished in accordance with the Respondent’s requirements as outlined above.
The Court finds the Complainant’s suspension from work from 7thNovember 2014 was wholly unrelated to the protected disclosure made and that the Respondent was not motivated in doing so by the Complainant having committed a protected act.
For the reasons referred to herein the Court is satisfied that the Complainant was penalised when she was placed on suspension for the period from 20thJune until 7thNovember 2014 for having committed a protected act under the Act. The Court orders the Respondent to pay her the sum of €17,500 in compensation for the detriment suffered.
Accordingly, the Court varies the Decision of the Adjudication Officer and the appeal is allowed in part.
The Court so Determines.
Signed on behalf of the Labour Court
5 September 2016Caroline Jenkinson
Enquiries concerning this Determination should be addressed to John Deegan, Court Secretary.