Complainant

Respondent

Parties

Peter  Behan

Our Lady’S Hospice Our Lady’S Hospice & Care Services

Representatives

Tina Ochelle Deasy IBEC

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-00069234-001

12/02/2025

On 13 March 2023, the Complainant emailed his line Manager, Mr. Kingsley Long, seeking the opportunity to receive training necessary for an application to work at the reception Desk of the Hospice facility. The training had, at that time, been made available to other staff working at the Hospice.

 On 14 March, Mr. Long, replied stating that there was a number of staff members who had requested the same training, and that it was not available to him. He replied to him setting out his disappointment and he simply asked for a reason for the decision to deny him the opportunity to avail of this training. His request for clarity on this issue continued in a frustrating email exchange throughout March and April of 2023, with no legitimate answer. On 5 July 2023 he wrote again to Mr. Long, expressing his disappointment at the denial of his repeated requests for clarity on this issue. He referred to correspondence dated 28 May 2023 to Kingsley Long when he asked for clarity as to  who had made the decision to deny him the opportunity to train on the desk. He outlined that he felt that he was being victimised as result of being a whistle-blower.

 On 12 July 2024, Mr. Long replied to his 5 July query stating that the reception manager did not have the resources to provide internal training or development to any staff. On 18 July 2024, at 15:48, the Complainant wrote to Claire Purcell (by email), Assistant Director of HR and Training, to raise a formal grievance under the Hospices grievance procedure, (Policy No: HR11). His grievance centred around the opportunity to receive the Reception IT Training and upskilling. This training opportunity the Complainant argues would have prolonged his career at the Hospice considering his age and his medical condition of which the Respondent was aware.  On 19 July 2024, Claire Purcell responded to his email, stating that the claims made in the email could not be substantiated, “the grievance is not upheld, and we now consider the matter closed”.  The Complainant argues that  Claire Purcell breached the Grievance policy by denying him fair process and procedure in line with the principles of natural justice. He had raised his complaint in writing with the HR Manager as per the Hospice grievance policy. As per that Policy, upon receiving a written complaint Claire Purcell should have appointed a panel and scheduled a grievance hearing as the matter was unresolved.  Claire Purcell’s email of 19 July 2024 and 20 August 2024 was a clear breach of the Hospice grievance policy and that this was a continuation of the frustrating tactics shown by the Complainant’s line manager Mr.  Long. The Complainant argues that it was also a breach of the Grievance Policy at 6.6 where it states, “An employee will not be penalised in any way for making a complaint in good faith regardless of whether or not the complaint is upheld”.  The Complainant believe that Claire Purcell or other persons within the HR function at OLHCS, are in clear violation of the Hospice grievance procedure. He believes that this was a direct result of Protected Disclosures submitted in 2015, 2018 and 2023. Throughout his correspondence with management, particularly Mr. Long and HR, he was repeatedly informed that the organisation could not facilitate internal training on the reception desk due to a lack of resources. This explanation was used consistently over a prolonged period to deny his request for professional development, despite other staff being accommodated. He believes that this was a direct result of the protected Disclosures.

The Complainant argues that the last act of penalisation was 23 August 2024 when he was denied his right to appeal in relation to the internal grievance. On that Ms. Purcell corresponded with him stating:  

“Thank you for the clarification on the meeting request. There was sufficient information in the correspondence and given there is a list of training for reception, which you are still an active member, and clear process in place for training and development opportunities, a follow up conversation with yourself was not necessary. Your complaint relates to the alleged decision of Our Lady’s Hospice and Care Services to refuse to give you the same opportunities as other colleagues to train at the reception desk. As I have established, your request has been received, and you remain on the waiting list to receive training on the reception. You have been offered the same opportunities for learning, training and development as all other stiff therefore there is no factual dispute in this matter, and an appeal is not warranted”.

That correspondence dated 23 August brings the claim within the six month time frame.   His complaint was filed with the WRC on the 12 February 2025. The cognisable period is 12 August 2024 to 12 February 2025.

The Complainant accepts that he was informed on numerous occasions from March 2023 to August 2024 that he was on the waiting list for reception desk training. However, he was never told where he was on that list. He queries if there ever was a list. 

The Complainant accepted when questioned that did call Ms Purcell on the 19th July and told her  her to get all of the emails from Mr Kingsley long. He also accepts that he declined to meet with her at that time. However, he fully expected that there would be a meeting once she had reviewed all of the emails.

Preliminary issue -Cognisable Period

The case involves a claim under Schedule 2 of the Protected Disclosure Act 2014. The claim was received by the WRC on 12.02.2025. The cognisable period for such claims is 12.08.2025 – 12.02.2025 The protection disclosures in relation to the claim were made in 2015, 2018 and 2023. They were as follows: 

-          A disclosure to the Public Accounts Committee in 2015

-          A disclosure to the Board of Management in 2018

-          A disclosure to HIQA in 2023

-          A concern to the CEO in relation to the Respondent’s response to the HSE during the internal audit investigation following the protected disclosure in 2015.

The Respondent argues that all of the above alleged incidents occurred outside of the cognisable period for the within claim. The Respondent submits that Complainant cannot now seek to expand or alter his claim to have it heard as he is now outside of the six-month time frame legally prescribed for bringing such a claim as all of the alleged incidences occurred outside of the cognisable period for the claim. Therefore, any extension for reasonable cause is excluded.

Preliminary application - Penalisation:

In the complaint form, the Complainant states  “I was penalised or threatened with penalisation by his employer for having made a protected disclosure, under the Protected Disclosure Act 2014”.

The Respondent refutes that the Complainant was ever penalised for exercising his rights under the Act. The Respondent was not aware that the Complainant had made ay protected Disclosures. In order to mount a claim under this Act a complainant must actually make a complaint under the act. He needs to set out exactly what the issue is in relation to the complaint. He must also show that he has suffered a detriment. The Complainant has failed to provide any evidence of how those requirements have been met. Furthermore, he has failed to link the above requirements to the alleged circumstances. Neither has he set out the issue he is complaining of or consequently show that he has suffered a detriment as a result. Not being able to facilitate training for the Complainant and placing him on a waiting list is in no way a detriment. This complaint is the first time the Respondent has heard of the alleged three protected disclosures.

There was request made on 13 March 2023 for training on the reception desk. The request was made to her manager Mr. Long. On 14 March the Complainant requested the name of the person who had denied him the opportunity to train for reception duties. Mr. Long replied on 16 March setting out that the requested had not been denied but merely that at that particular time they couldn’t facilitate the training. Other training opportunities that were available at that time were made known to the Complainant.  The Complainant responded to say that he felt that he had been denied and that he was being treated unfairly and asked if there was anywhere else the training could be facilitated.   All of the training on the reception desk was up on hold for everyone at that time.

On 27 March Mr. Long wrote to the Complainant asking if there were any areas that the Complainant might be interested in. The Complainant replied on 28 March 2023 insisting on the name of the person who had denied him the opportunity to train on the front desk. On 03 April Mr Long contacted the Complainant again advising him that the position had not changed but the Complainant was still insisting on the name of the person he believed denied him, made claims of victimisation because he was being refused training and stated that his claims related to whistleblowing. On 26 April the Complainant was again advised that his request for training had not been denied but that it was just not possible at that particular time. The Complainant went even further then as alleged he was being victimised because of his whistleblowing because he was a shop steward and was being discriminated against because he was a male. Again, on 12 June 2024 Mr Long reiterated that his request for training had not been denied. He explained that he along with other staff members who were interested had been placed on a waiting list. He was given the relevant policy and advised on other course that might be of interest to him.

A formal grievance was raised on 18 July. It was based on unequal access to L&D training based on gender discrimination and for raising a concern in 2015 that led to the HSE audit. Ms. Purcell acknowledged receipt of the grievance and requested a meeting to address the issues. The Complainant refused to meet stating that he did not feel it was necessary to have a meeting. He also stated that Mr. Long had failed to give him the name of the person who had refused his request for training. That grievance was dealt with, but the Complainant did not get the outcome he was looking for. The outcome was given to the Complainant on 01 August 2024. On 18 August 2024 the Complainant emailed querying the grievance hearing and the decision. He was advised that he had been offered a meeting to discuss his grievance, but he declined to attend, that his training request had not been denied and that he was still on the waiting list for that training. On 28 January 2025 Ms Purcell checked with Ms. Doyle the reception manager on when training might be available. She was informed that training could not be facilitated before June 2025.  

Claire Purcell – Affirmation

The Complainant called her on the 19th July and he said that there was no need to meet and he was going to rely on the email correspondence between himself and Mr. Long (his line manager). He gave her permission to get a copy of all the emails. She got a copy of all of the correspondence from Mr. Long.  In those emails Mr. Long informed him repeatedly that there was no training at that current time on the reception desk but there was other training he could avail of if he wanted to and that he was on the wating list for the training.

 The Complainant filed his complaint with the Workplace Relations Commission (WRC) on 12 February 2025. The cognisable period for this complaint is from 12 August 2024 to 12 February 2025.

The Respondent submits, firstly, that it was not on notice of any protected disclosures made by the Complainant until this complaint was filed with the WRC in February 2025, and secondly, that the complaint is statute-barred as no detriment was suffered within the cognisable period, or at all.

The Complainant contends that the last act amounting to a detriment occurred on 23 August 2024, thereby bringing the claim within the statutory time limit. He states that he made several protected disclosures: one to the Public Accounts Committee (PAC) in 2015, one to the Board of Management in 2018, and one to HIQA in 2023. He alleges that, following these disclosures, the Respondent refused to grant him equal access to reception duties training and denied him access to the organisation’s grievance procedures, despite his requests. He claims these refusals were direct consequences of his having made protected disclosures and constitute a detriment under the Act.

The Respondent argues that the Complainant suffered no detriment. The evidence shows that the Complainant emailed his manager, Mr. Kingsley Long, on 13 March 2023 requesting training on the reception desk, stating:

“I would like an opportunity to do some training on the Reception Desk, as it may be a position that I am interested in applying for in the future.”

Mr. Long replied on 14 March 2023 stating “I had a brief word with Linda Doyle, Reception Manager, yesterday. Unfortunately, there are already a number of staff members who have requested the same. At this time, Reception does not have the resources to train or develop any more staff. However, if this is something that you would like to pursue, I would recommend completing a Digital Skills Training Course and a Reception Skills Training Course, as these would be desirable prior to any training should an opportunity arise in the future.”

The Complainant interpreted this as a denial of his request and responded on 16 March 2023, stating: “I believe that I have been denied an opportunity to do training in reception because other staff have been facilitated by the organisation. Why am I being treated differently? Are there any opportunities in other areas of the Hospice where I can do some training?”

Mr. Long replied on the same day stating “This is not denying you; it’s as below — it’s just not feasible at this time. Anyone who did training would have to complete a Reception Skills Training Course. So, I would suggest this to be your first step.”

The Complainant was advised on several occasions that he was not being denied training, but that it was simply not feasible at that time. However, he did not accept this explanation, believing that other staff were being facilitated.

On 12 July 2024, Mr. Long wrote to the Complainant stating: “I understand that you are disappointed. I have responded to your emails on 14, 16, and 27 March, 19 and 23 April 2023, and 3 April 2024 in relation to this matter. Your requests for training have been noted, along with those from a number of other staff who are all still waiting. When you first made the request for internal training in the reception area, I liaised with the Reception Manager, who informed me that they did not have the resources to provide internal training or development to any staff. The status quo on this has not changed. You are being afforded the same opportunity as all staff in OLH&CS for training and development.”

The Complainant remained dissatisfied and raised a formal grievance on 18 July 2024. The grievance alleged unequal access to learning and development training, gender discrimination, and penalisation for raising concerns in 2015 that led to an HSE audit. Ms. Purcell acknowledged receipt of the grievance and invited the Complainant to a meeting to address the issues. The Complainant refused to attend, stating that he did not believe a meeting was necessary.

The Complainant also alleged that Mr. Long had failed to provide the name of the person who refused his training request. However, Mr. Long had repeatedly stated that the decision came from the Reception Manager, Ms. Doyle, who had confirmed that resources were unavailable at the time.

As the Complainant declined to meet with Ms. Purcell, she carried out her investigation based on the existing correspondence and issued her decision accordingly. The grievance outcome was communicated to the Complainant, but it is evident that he was dissatisfied with the result. The outcome was issued on 1 August 2024.

On 18 August 2024, the Complainant emailed querying the grievance process and decision. He was advised that he had been offered a meeting, which he declined, and that his training request had not been denied — he remained on the waiting list for training.

I do not accept the Complainant’s assertion that he expected Ms. Purcell to revert to him after her review of the correspondence. His own email of 20 August 2024 clearly indicated that he declined to meet and asked for the matter to proceed based on written exchanges.

On 20 August 2024, the Complainant expressed his wish to appeal the grievance decision. On 23 August 2024, he was informed:

“Thank you for the clarification on the meeting request. There was sufficient information in the correspondence, and given there is a waiting list for reception training (of which you remain an active member) and a clear process in place for training and development opportunities, a follow-up conversation was not necessary. Your complaint relates to the alleged refusal to provide you with the same opportunities as other colleagues to train at reception. As established, your request has been received, and you remain on the waiting list. You have been offered the same opportunities for learning, training, and development as all other staff. Therefore, there is no factual dispute in this matter, and an appeal is not warranted.”

The Complainant relies on the refusal of his appeal on 23 August 2024 as the detriment bringing his claim within the statutory period.

At first glance, a refusal to allow an appeal of a grievance decision may appear to breach the right to fair process. However, the circumstances here are not so straightforward. The Complainant sought to appeal a finding that he had not been denied training. It was made abundantly clear to him that he remained on a waiting list and would receive training once resources allowed. The same applied to all other staff.

Although the Complainant alleged that others were given training, he provided no evidence to support this claim. He acknowledged during the preliminary hearing that both Mr. Long and Ms. Purcell informed him that all staff were in the same position, he simply doubted the truth of their statements.

Considering these facts, it would be illogical to expect that an appeal could have produced a different outcome. The Respondent consistently stated that the Complainant had not been denied training. The refusal to allow an appeal was therefore based on the absence of any factual dispute.

Odum & Ors v Minister for Justice and Equality  2023 IESC 3 O’ Donnell C.J  stated “ An appeal is moot when a decision will not have the effect of resolving some controversy affecting or potentially affecting the rights or the parties. Such a live controversy must be present not only when the action or proceeding is commenced but also when the court is called upon to reach a decision” In Goold v Collins 2004 IESC Hardiman J stated “there was not a live concrete dispute between the parties” and relied on the established mootness rationale that where there is no live controversy the court will not adjudicate.  

In these specific and limited circumstances, I find that the decision deeming an appeal “unwarranted” does not constitute a detriment.

The situation regarding training has remained unchanged from March 2023 to date. I therefore find that no detriment occurred within the cognisable period. As such, I need not consider whether a detriment occurred outside that period, as the matter is statute-barred and I lack jurisdiction to consider it further.

Extension of Time

Section 41(8) of the 2015 Act empowers an Adjudication Officer to extend the six-month limitation period by no more than a further six months, if satisfied that the failure to present the complaint within the initial period was due to reasonable cause.

The concept of “reasonable cause” has been considered in numerous cases. In Salesforce.com v Alli Leech, the Labour Court adopted the principles set out in Cementation Skanska v Carroll (DWT0338), stating:

“It is the Court’s view that, in considering if reasonable cause exists, it is for the Claimant to show that there are reasons which both explain and excuse the delay. The explanation must be reasonable — that is, it must make sense, be agreeable to reason, and not be irrational or absurd. The Claimant’s failure to present the claim within the six-month time limit must have been due to the reasonable cause relied upon. Hence, there must be a causal link between the circumstances cited and the delay, and the Claimant must satisfy the Court, on the balance of probabilities, that had those circumstances not been present, the claim would have been presented on time.”

This approach aligns with the reasoning of the High Court in Minister for Finance v CPSU and Others and draws from Donal O’Donnell and Catherine O’Donnell v Dún Laoghaire Corporation, where Costello J. stated:

“The phrase ‘good reasons’ is one of wide import which it would be futile to define precisely. The test must be an objective one; the Court should not extend time merely because the applicant subjectively believed they were justified in delaying. What must be shown are reasons that both explain and provide a justifiable excuse for the delay.”

Accordingly, the burden is on the applicant seeking an extension to Identify the reason for the delay, establish that the reason provides a justifiable excuse, demonstrate a causal link between the delay and the stated reason and satisfy the adjudicator that, but for those circumstances, the complaint would have been filed in time.

No evidence was presented to show any reasonable cause for the delay in filing the complaint. Therefore, I cannot exercise his discretion under Section 41(8) of the Act to extend the time limit.

The Complaint fails.

The complaint fails.

Penalisation. Detriment. Statute of Limitations.  Appeal. Mootness.