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Nursing Assistant Unfairly Dismissed for Making Protected Disclosure

May 3, 2017

In a recent case before the Workplace Relations Commission (“the WRC”) a nursing home employee who was dismissed after making a protected disclosure to the Health Information and Quality Authority (HIQA) was awarded two years’ salary.

This case concerned an individual who had been employed as a nursing home assistant. Following some weeks of work at the nursing home, the employee began to have concerns regarding some of the practices that she observed. On finding a resident “tied with a walking belt into an ordinary chair in her room with the door closed and in a very distressed state” she completed an incident report form. However, soon after, she found that the entry on the incident had been removed. Following this incident, she perceived a marked change in the attitude of management towards her. She began to feel “frozen out”.

The employee continued to raise concerns regarding certain practices at the nursing home in relation to medication and the competence of certain staff, however none of these concerns were addressed. Feeling that she had no other option, the employee made a protected disclosure to HIQA on 27 October 2015. Following this, HIQA made an unannounced inspection on 30 October 2015.

A couple of months later, in January 2016, despite the fact she was out of the country and on annual leave, the employee was requested to attend a disciplinary hearing regarding an allegation of withholding drugs from residents without consent. She subsequently received correspondence, on 4 February 2016, that her employment had been terminated in her absence.

The employee contended that there had been an orchestrated attempt to terminate her employment as quickly as possible before she accrued 12 months’ service. She maintained that she was dismissed due to her protected disclosure to HIQA.

The employer refuted this and stated that the nursing assistant’s dismissal for gross misconduct was solely based on serious and dangerous breaches of procedure by her.

The Adjudication Officer confirmed that a protected disclosure had been made under the Protected Disclosures Act 2014 (the 2014 Act). Furthermore, the Adjudication Officer decided that the nursing home instigated the disciplinary procedure in an attempt to dismiss the employee before she accrued 12 months’ service, as a result of her protected disclosure to HIQA. It was therefore found that, had it not been for the protected disclosure made by the employee, she would not have been dismissed. Her dismissal was deemed unfair and she was awarded two years’ salary (amounting to €52,416) in compensation.

The decision is important for a number of reasons. Ordinarily, pursuant to the Unfair Dismissals Acts 1977- 2015 (the UD Acts), an individual bringing a claim for unfair dismissal must have accrued at least 12 months’ continuous service. However, there are a number of exceptions to this rule; one of those being if an employee is dismissed for making a protected disclosure under the 2014 Act. Pursuant to the 2014 Act, if an employee has less than 12 months’ service they may still bring a claim for unfair dismissal.

The 2014 Act also increases the potential award available up to a maximum of five years’ remuneration for employees found to have been dismissed after making a protected disclosure. This is in stark contrast to the maximum award available under the UD Acts (2 year’s remuneration). Notably, the 2014 Act refers to compensation for infringement of the employee’s rights. In this decision the award was not made subject to tax. Awards made pursuant to the UD Acts for loss of earnings are normally taxable.

In this case, two years’ remuneration was deemed sufficient compensation. It will be interesting to see the compensation awarded for similar cases in the future.

This decision serves as a timely reminder to employers to put in place an effective whistleblowing policy, ensuring it complies with the Protected Disclosures Act 2014. Employers will now need to be in a position to show that any action taken against an employee who has made a protected disclosure is not connected to the disclosure itself. It is also vital that employers are alert to the fact that the 12 months’ service requirement does not apply in these instances.

Contributed by Catherine O’ Flynn

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