HSD2515

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00039349 (CA-00050870-002)

BACKGROUND:

The Complainant appealed the Decision of the Adjudication Officer to the Labour Court in accordance with Section 29(1) of the Safety, Health and Welfare at Work Acts, 2005 to 2014.  A Labour Court hearing took place on 09 July 2025.

The following is the Decision of the Court:-

DECISION:

This is an appeal by Gerard Foy against an Adjudication Officer’s Decision (ADJ-00039349 CA-00050870-002, dated 17 April 2024) in a claim that he was penalised by the Health Service Executive, having made a protected act under the Safety, Health & Welfare at Work Act, 2005 (“the Act”).

The Adjudication Officer held that the complaint under the Act was not well founded.

A hearing of the Labour Court was held in Wexford on 9 July 2025. The Court heard submissions from both parties and witness testimony from Mr Foy. An appeal by Mr Foy in relation to a complaint of penalisation under the Protected Disclosures Act 2014 (PDD2511) which relies on the same set of facts was heard on the same day.

For ease, the parties are referred to in this Decision as they were at first instance. Hence, Gerard Foy is referred to as “the Complainant” and the Health Service Executive as “the Respondent”.

1. Position of the Complainant

The Complainant is employed as an agency staff nurse and has worked in the Respondent’s Intellectual Disability Residential Services since March 2015.

On 21 April 2020, the Complainant witnessed a work colleague assault a resident at the facility by pouring a cup of water over the head of a resident. The Complainant reported the incident to the CNM2, Clinical Nurse Manager, who in turn informed the Regional Director of Nursing.

The Complainant followed all appropriate procedures in disclosing the incident. He sent a copy of the report to the Regional Director of Nursing as she was the designated person to investigate the incident.

The Complainant was alarmingly advised by his line manager that if the incident had been witnessed by a direct employee of the HSE, it would not have been reported. As part of the shift handover process, the Complainant showed his written report to two incoming night duty staff, one of whom was a friend of the reported colleague.

He understood thereafter that an investigation took place, and instead of any or any appropriate reaction to the disclosure, the employee in question was eventually reassigned to a different community house.

Subsequently, when the Complainant and that colleague came into contact at work again, the colleague in question ignored him which made the Complainant uncomfortable. The colleague had apologised to the Complainant at the time of the incident for having put him in the position of having to report the incident at all.

After making the initial complaint, the Complainant wrote to the Regional Director of Nursing as he felt unsupported by management. He was invited to attend a meeting on 9 October 2020. At the meeting, he was informed he could have brought someone with him, which came as a surprise to him. He informed the Regional Director of Nursing that he had been offered no support by management including herself. She did not receive this news well. Instead, he was confronted about showing his written report to work colleagues, which he did as part of the handover process to the night staff.

The Regional Director of Nursing made it clear he should not have done this, for which the Complainant apologised. He was made to feel as if he was the individual under investigation rather than the colleague who carried out an assault on a resident.

In January 2021 the Complainant received an email from the Regional Director of Nursing enquiring if he had apologised to the colleague in question for showing the report to other colleagues. An apology was not discussed at the October meeting. Out of fear that he would not get any further work from the Respondent (as an Agency worker), he wrote a letter of apology dated 27 January 2021. He also had to complete training in GDPR.

The Complainant felt unsupported, targeted, and punished for making the disclosure. He had initiated contact with the Regional Director of Nursing on the basis that he had received no support from management in relation to the disclosure. He was made to feel as if he was under investigation. To the best of his knowledge, a purported investigation took place, however the Complainant was not included or kept up to date with its progress or outcome.

In February 2020, the Complainant unsuccessfully applied for a permanent CNM2 position with the HSE. The application criteria are competency-based with the minimum threshold in any competency area being 40%. To the Complainant’s surprise, he was awarded 36 for “Experience” relevant to the role, despite having worked from 2002 to 2007 as a CNM2.  In January and February 2022, he was interviewed for less senior permanent positions but was unsuccessful in his application. He appealed the decision to reject his application. but received no correspondence from the Recruitment Manager responsible for the appeal.

Subsequently, the Complainant’s hours and working conditions were changed. To date, the Complainant has:

• Been scolded for reporting in the matter during handover.
• Been made to apologise to a person whom he saw assault a service user.
• Been subjected to training for having breached GDPR guidelines which is questionable in and of itself.
• Been excluded from the investigation process as relates to his own complaint.
• Been excluded as the Complainant to the event.
• Had his more than relevant experience disregarded as part of a job interview.
• Been excluded from a panel which he should at a minimum be on, perhaps even top of.
• Had his hours of work taken from him.
• Refused hours in alternative houses.
• Been advised that he be kept away from HSE staff and those which he complained about as if he is the wrong that has done wrong.

On 18 May 2022, the Complainant wrote to management alleging that another colleague had engaged in continuing bullying behaviour. This unfortunately went unaddressed by the Respondent.

The reporting of the initial incident in April 2020 has been detrimental to the Complainant’s professional good standing and professional progression. He contends he has been isolated, bullied, victimized, and punished by way of reduced hours following the unsuccessful result of his Staff Nurse interview. He has suffered interference with scheduled work, changed working schedules, potential transfers to other sections. He has failed to gain a permanent position despite being the most senior suitable candidate available to the Respondent.

The Complainant was subject to detriment in making the disclosure as no investigation appears to have occurred and the Complainant himself became the subject of measures, albeit of an informal nature, being taken by management in relation to demanding an apology on behalf of the colleague who was the subject of those disclosures. Furthermore, the Respondent failed in its duty not to pursue his complaint.

It is submitted that the Complainant was penalised for making his disclosure.

2. Position of the Respondent

The Respondent has no record of the Complainant lodging a complaint in relation to health and safety.

This matter was not raised with management disability services. The Complainant did not raise his concerns of penalization with the Director of Nursing or indeed with any other manager.

An incident arose in a residence on 21 April 2020 whereby an employee acted inappropriately in their duty of care to a resident. The Complainant was the nurse on duty at the time. He reported the matter to the Clinical Nurse Manager 2 (CNM2), the manager of the house. The CNM2 immediately referred the matter to the Regional Director of Nursing. The following actions took place:

• the resident was supported by staff and Psychology services.
• Preliminary screening was conducted under the Trust in Care policy.
• The safeguarding team was informed who conducted their investigation into the matter.
• HIQA was informed and furnished with report into the incident.

Following the outcome of the preliminary screening, the matter was addressed under the HSE disciplinary procedure.

The Complainant raised concerns in his claim that he was not made aware of the outcome and that no investigation took place following his reporting of an incident by the HSE. The matter was addressed, and the Disciplinary Procedure invoked by the HSE. The disciplinary proceedings were confidential to the parties, thus not a matter for discussion with the Complainant.

The Complainant shared his statement in relation to the incident with colleagues at handover. This matter was managed as a breach of GDPR by the Regional Director of Nursing. Meetings were held with the Complainant and the Regional Director of Nursing where the matter was discussed, and a course of remedy agreed. The Complainant acknowledged to the Regional Director of Nursing that he should not have shared his report with colleagues.

As the staff nurse on duty at the time of the incident, the Complainant took appropriate action as was his duty in line with HSE policy to report all incidents. The matter was addressed under the Trust in Care policy by the HSE.

The Complainant believes that he was penalised for reporting an incident under protected disclosures resulting in him not being successful in two competitions. He appealed the outcome of the first recruitment competition on 15 February 2022. The Recruitment Manager conducted a review of the interview notes and outcome. By letter dated 20 April 2022, it was outlined how the review was conducted and the framework used in the process. The decision of the interview board was upheld. The Complainant did not take this matter to the next stage. The Complainant appealed the outcome of CMM2 competition.

By letter dated 20 April 2022, the Recruitment Manager outlined how the review was conducted and the framework used in the process. Both appeals were conducted in line with HSE Recruitment Licence.

The Respondent does not accept that the Complainant was penalised for reporting a protected disclosure.

The Complainant performed his duty of care. The HSE addressed the matter under the disciplinary procedure as per policy. The Complainant was not entitled to information in relation to the process as it related to another employee.

The matter of GDPR rose because the Complainant shared his statement of the incident with work colleague. This is a breach of GDPR and was addressed appropriately by the Regional Director of Nursing.

3. Testimony of the Complainant

The Complainant is a qualified nurse and has worked as an agency worker with the Respondent since 2015.

On 21 April 2020, the Complainant witnessed an assault incident at work. He followed procedures and informed his manager. She informed the Regional Director. The Regional Director asked for a report on the matter. The Complainant drafted a written report on that day and submitted it to management. His manager said that if he were a HSE employee, the matter would not have been reported. He thought that was a desperate thing for a manager to say.

He showed the report to two colleagues coming on duty, as he felt they needed to know what had happened in terms of duty of care. He does not know what happened to the complaint. He did not hear anything further.

There was no initial impact on the quality of his working relationships. The individual was moved to another area. The person who conducted the assault was friendly with others and there was a lot of chatter in the background. People doubted that he had witnessed an assault.

He wrote to the Regional Director to say that he did not feel supported. The Regional Director met with him on 9 October 2020. He thought the purpose of the meeting was to discuss that matter. Instead, he was questioned about GDPR and told that he should not have shared the report with anyone. The Complainant felt as if he was the one who had done something wrong. He was told to undertake certain courses in relation to GDPR. He was also told to apologise to the person who had assaulted a resident. He was told that if he gave a letter of apology the matter would go no further. He wrote a letter of apology.

In February 2020, prior to the incident, he had applied for a promotional position of CNM2. He did not get the job but scored highly. He appealed that decision. He applied for another competition for a less senior post and scored very low. He was shocked that he was not successful in that competition. He appealed that decision. A week or so after the second interview, his premium shifts were taken from him. He felt the shifts were taken from him because he was unsuccessful in the competition. He submitted a letter of complaint.

Around the same time, he was told by the CNM2 that another individual had requested that he not be allowed work in the same house. In his meeting with the Regional Director, he raised issues about not being supported at work. If he had not contacted her about not being supported, that the meeting would not have taken place, and no issues would have been raised about GDPR.

In his view, his workplace issues all stem back to when he reported the assault incident. He does not believe the incident itself was the causation of the workplace issues, but rather the meeting with the Regional Director when he asked for support.

Under cross examination, the complainant said that he was familiar with the Trust and Care Policy and his role as a staff nurse in that policy.He did not discuss the incident with his line manager, as she was not supportive. She said that a direct employee would not have reported the matter. He completed a report and thought that management would seek clarity on the information he provided.

He understood that there was preliminary screening process and that the report was private and confidential. He accepted that he held onto a copy of the report in breached of GDPR policy. He accepted that matters he raised in a letter dated 18 May 2022 to CNM2 about bullying and harassment were addressed.

Relevant Law

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,

(b) demotion or loss of opportunity for promotion,

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

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

(e) coercion or intimidation.

(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,

(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.”

4. Deliberation and findings

The Complainant lodged his complaint under the Act with the WRC on 26 May 2022. Accordingly, the relevant period for consideration by the Court in assessing a contravention under the Act, having regard to the statutory time limits, is the period from 29 November 2021 to 26 May 2022.

The Court in considering the complaint must address three questions.

In the first instance, the Court must be satisfied that a protected act or acts has or have taken place as described in the Act at Section 27.

Secondly, the Court must be satisfied that the Complainant suffered a detriment during the relevant period as described in the Act at Section 27.

Finally, the Court must decide whether the detriment was suffered because of her commission of a protected act.

Was there a protected Actas described at Section 27 of the Act?

The Respondent submits that no protected act is identified to ground the within complaint, as it has no record of the Complainant lodging a complaint in relation to health and safety, nor did he raise any issues with management disability services.

Notwithstanding that position, the Respondent fully accepts that on 21 April 2020, the Complainant witnessed a work colleague assault a resident at the facility where he worked. It is further accepted that the Complainant followed the appropriate procedures in disclosing the incident to the Regional Director of Nursing who was the designated person to investigate the incident.

The matter was addressed under the HSE Trust in Care policy.

Having considered the submissions made and the correspondence opened to it, the Court is satisfied that the statement from the Complainant to the Respondent on 21 April 2020, which sets out details of a work colleague assaulting a resident, constitutes a protected act within the meaning of the Act at Section 27(3)(c) in that those communications amounted to a representation in relation to a matter relating to the Complainant’s safety, health, or welfare at work.

As a result, the Court finds that the Complainant has satisfied the first leg of the test in that the Complainant made a protected act as provided for at Section 27(3)(c) of the Act “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”.

An employer is prohibited from penalising a worker, or threatening a worker with penalisation, where they have made a protected disclosure.  The Court must consider whether or not the Complainant in this case was penalised for having made such a protected disclosure.

Counsel for the Complainant contends that the reporting of the incident in April 2020 has been detrimental to the Complainant’s professional good standing and professional progression and that, as a result, the Complainant was subject to penalisation, victimisation and bullying behaviour.

The relevant test in this case for determining whether a worker has been penalised for having made a protected act was considered by the Labour Court in Paul O'Neill v Toni & Guy Blackrock Limited [2010] ELR where the Court held as follows: -

‘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 detriment.’

To succeed in his complaint under the Act, the detriment giving rise to the complaint must have been incurred because of, or in retaliation for, the Complainant having committed a protected act. Furthermore, the Court is confined to assessing alleged contraventions under the Act that occurred within the six-month period prior to the lodging of the complaint to the WRC (i.e. the period from 29 November 2021 to 26 May 2022).

In the within appeal, the Complainant has not established any causal link between penalisations alleged during the relevant period for the within complaint and the making of a protected act in April 2020.

His own evidence to the Court was that after reporting the incident in April 2020 there was no initial impact on the quality of his workplace relations. The Complainant’s direct evidence was that he did not believe the incident itself was the causation of his workplace issues, but rather the meeting with the Regional Director when he asked her for support and instead was subject to criticisms.

Having regard to the evidence of the Complainant, the Court finds that the Complainant has failed to establish a causal link between his making of a protected act on 21 April 2020 and the subsequent penalisations alleged.

5. Decision

For the reasons set out above, the Court determines that the within complaint is not well founded.

The decision of the Adjudication Officer is affirmed.

The Court so determines.

	Signed on behalf of the Labour Court
	Katie Connolly
AL	______________________
18 July 2025	Deputy Chairman

NOTE

Enquiries concerning this Determination should be addressed to Ms Amy Leonard, Court Secretary.