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02.04.2019

€35,000 award for dismissal of whistle-blower

 

 

Care centre ordered to award €35,000 to whistleblower

The Workplace Relations Commission (WRC) recently awarded €35,000 to a nurse in a residential care centre for unfair dismissal. The case involved a voluntary body employer that was reliant on government funding to run a large care centre employing 420 staff. The Adjudication Officer (AO) ruled that there was a link between the nurse’s dismissal in December 2017 and his earlier disclosure to management, in September 2017, of what he described as an assault by a colleague on a resident.

Employment history

The complainant was employed on a permanent basis as a nurse since February 2017 after a period working in the centre through an agency since July 2016. The day after he made the complaint to his manager about his colleague’s alleged behaviour, he was called to attend a probationary review meeting. At that meeting, his manager informed him that he needed to improve his performance and that his probationary period was to be extended to the end of November 2017. No details were given as to the standards of performance required. The manager also advised him that he was upsetting people.

In early November 2017 the complainant made a separate bullying complaint against his manager, and on December 6th, 2017 he was dismissed. The complainant stated that his current employer’s view of him was coloured by his involvement in raising large-scale complaints of sexually abusive behaviour, in a separate care setting.

The care centre argued that there were persistent performance issues with the complainant. In addition, the care centre cited that the nurse had a series of absences due to illness and injury and that his line manager was afraid to be alone with him. The care centre also raised the fact that, at one point in his employment, there was a retracted resignation, which the care centre claimed demonstrated that his behaviour was erratic. The care centre also investigated the complaint alleged by the complainant and found that there was no case to answer.

Protected disclosure

The care centre contended that the complaint could not be a protected disclosure as the complainant did not benefit from the protection provided under Section 27(2) of the Protected Disclosures Act, 2014. The AO preferred the evidence of the complainant as the care centre had no clear guidelines in place clearly setting out what constituted a protected disclosure.

The AO also noted that the complainant was not provided with the report on the investigation of his complaint prior to his dismissal. The care centre’s failure to provide the report to the complainant, despite issuing it to the colleague he complained about, was outside normal procedure. This exclusion compounded the care centre’s less favourable treatment towards the complainant, and appeared to the AO, to be ‘retaliatory action’ against the complainant for making the complaint.

Lack of documentation

The AO found that the care centre had not adequately documented their concerns in relation to the complainant prior to his complaint about his colleague’s behaviour. Without evidence that they had afforded the complainant fair procedures in relation to his behaviour, the organisation could not demonstrate to the AO, that the subsequent disclosure was not linked to the dismissal.

Keep detailed records

This case shows that it is vital for employers not to postpone dealing with erratic employee behaviour. Failure to document issues of concern and the measures taken to deal with those issues also expose employers to a heightened risk of unfair dismissal. Documenting the measures taken to deal with any issues provides employers with the opportunity to demonstrate that there was a legitimate reason for terminating employment.

Protected disclosures

Employers that are found to have penalised an employee for making a protected disclosure face stiff penalties including being ordered to award the employee up to five times their annual remuneration. It is important to note that employees do not have to complete any minimum service requirement before gaining the protection afforded by the Protected Disclosures Act, 2014.

Put a protected disclosure policy in place

The AO’s decision also highlights the importance of putting a Protected Disclosures Policy in place. Employees should know what amounts to a protected disclosure to avoid confusion arising when an employee needs to make a complaint. If complaints are not handled under the correct procedure, there is a risk that an employee misunderstanding could snowball into a more serious complaint.

Whistleblowing examples

Under the Protected Disclosures Act, 2014, a protected disclosure can relate to concerns in relation to;

  • Breach of law
  • Failure to comply with legal obligations
  • Disclosures in relations to a miscarriage of justice
  • Health & Safety risks, not only risks to employees but also to the public
  • Damage to the environment
  • Unauthorised use of Company funds
  • Fraud and Corruption
  • Sexual, Physical, or any type of abuse of clients
  • Unprofessional actions with the Company

Where an employee raises a concern and can prove the following, they will likely attract the protection of the legislation.

  • The disclosure has been made in good faith
  • They believe it to be substantially true
  • Are not acting maliciously or making false allegations, and
  • Are not seeking personal gain thereafter,

Employees are also likely to enjoy protection from what appears to be less favourable treatment, after making a complaint provided the above conditions are satisfied.

Call today

If you would like further advice in relation to the Protected Disclosures Act, 2014, or, if you would like advice or a sample policy on Whistleblowing & Protected Disclosures, please contact us on 01 8860350 to speak with an employment law expert.

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