PDD2512

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00046871 (CA-00057832-001)

BACKGROUND:

The Worker appealed the Decision of the Adjudication Officer to the Labour Court on 19th June 2024. A Labour Court hearing took place on 13th August 2025.  The following is the Court's Decision:

DECISION:

Background to the Appeal

This is an appeal by Ms Joann McGarry (‘the Complainant’) from a decision of an Adjudication Officer (ADJ-00046871, dated 31 May 2024) under the Protected Disclosures Act 2014 (‘the Act’). Notice of Appeal was received in the Court on 19 June 2024. The Court heard the appeal in Dublin on 13 August 2025.

The Factual Matrix

The Complainant is employed by the HSE (‘the Respondent’) as a Health Care Assistant in Mental Health Intellectual Disability Services based at Portrane, Co Dublin. Her employment commenced on 23 December 1988. The Complainant initiated a protected disclosure within the meaning of the Act on 18 May 2023 regarding the care received by four service users in 2021. She submits that she was penalised as a consequence of making the aforementioned protected disclosure on 23 June 2023 when she was removed from her then shift pattern although she was the person with the most seniority in her team. The Complainant referred her complaint under the Act to the Workplace Relations Commission on 21 July 2023.

Respondent’s Submission

The Respondent’s Representative, Mr Ross, provided the Court with a comprehensive account of the engagements that had taken place over several months between the Respondent and the SIPTU Trade Union in relation to the need to revise the staffing arrangements in the setting in which the Complainant was employed as a consequence of the increasing age and changing care needs of the service users there. Those engagements culminated in a collective agreement that provided inter alia for the eventual redeployment of twelve Care Assistants and their replacement with Nurse-led care arrangements for the impacted service users. Mr Ross told the Court that the Complainant did not accept the terms of the collective agreement but was nevertheless instructed to transfer from her sleepover shift to an alternative shift. According to Mr Ross, the changes made to the Complainant’s shift on 23 June 2023 came about solely as a consequence of the implementation of the collective agreement that had been finalised in December 2021 with SIPTU.

Discussion and Decision

The alleged penalisation the Complainant told the Court that she had experienced as a result of her protected disclosure made on 18 May 2023 (i.e. removal from her sleepover shift) differs from the penalisation she alleged at first instance before the Adjudication Officer when she alleged that the penalisation consisted of being compelled to take accrued annual leave at a specific time. This inconsistency on the part of the Complainant is of grave concern to the Court. The Complainant was advised at the hearing that it is not permissible to run a different case on appeal to that which she had run before the Workplace Relations Commission. In any event, the Court can only deal with the issues put before it. The Complainant, in reply to questions from the Court, agreed with Mr Ross’s account of the process that culminated in a collective agreement between the Respondent and SIPTU. She also accepted that her contract of employment provided for flexibility and redeployment.

In the light of the Complainant’s acceptance that the process which culminated in a change to her working pattern had been in train for almost two years, and was the subject of a collective agreement, the Court finds that her complaint of penalisation is not made out and is not well-founded. For the foregoing reasons, the Complainant’s appeal is dismissed and the decision of the Adjudication Officer is upheld.

The Court so decides.

	Signed on behalf of the Labour Court
	Alan Haugh
JNF	______________________
18 AUGUST 2025	Deputy Chairman

NOTE

Enquiries concerning this Decision should be addressed to Ms Julie Nicholl-Flood, Court Secretary.