The recent reporting by the Irish Times of a Workplace Relations Commission case where an employee nurse was awarded €52,416 after being sacked for making a Protected Disclosure demonstrates that some employers will never learn! Obviously, this employer thought they could treat the employee with disdain where she was employed for less than one year: they learned a hard lesson!
This case is reported in detail on the Workplace Relations Commission (WRC) website titled “An Employee –v An Employer” – Adjudication Reference ADJ-00000456. In this case the employee nurse was sacked for making a Whistleblowing Report to HIQA. In one instance she came across a resident tied to a chair in her room with the door closed and in a very distressed state. And the employer subsequently commenced a Disciplinary procedure against her! The employer obviously took no legal advice before sacking the employee.
In my Article “The – “WHISTLEBLOWERS” – Protected Disclosures Act 2014 – For Good or for Bad?” I explained the provisions of the Protected Disclosure Act 2014. Here I advise employees as to how they should act in the event that a situation arises where a Protected Disclosure is necessary. It is important to read my Article to get a proper understanding of the circumstances in which a worker can make a Protected Disclosure about a wrongdoing in the workplace and avail of certain statutory protections, in particular availing of the right to sue one`s employer for Unfair Dismissal where an employee believes that he was dismissed for making such a Disclosure. An employee could be awarded up to 5 years’ salary by the WRC where it is found that he was unfairly dismissed in those circumstances. He could also have the option of applying for Interim Relief through the Civil Courts under the legislation where the employee claims to have been dismissed by his employer wholly or mainly for having made a Protected Disclosure, thus obtaining a Court Order re-instating him to the workplace pending the WRC Hearing. All of this has been covered in detail in my substantive Article and in particular the fact that such an Application to the Court must be made within 21 days of the dismissal.
What should a Worker / an Employee do under the Protected Disclosure Act?
While the Act does not require that a Disclosure should be made in writing, if for instance an employee has concerns that he will be penalized or dismissed for making a Protected Disclosure then it is advisable that the Disclosure is made in writing and that the employee is in a position to prove the date of the Disclosure. Delivery of the Disclosure by email would generally put the date beyond doubt.
The reason why putting the Disclosure in writing is advisable is in view of the Decision of the Adjudication Officer of the WRC in a Case heard under Case No ADJ-00003371 Complainant v Authorized Insurance Company (Decision issued 20th October 2016) – where, on the facts of the case, the Adjudication Officer refused to believe that the employee had been penalized as a result of making a Protected Disclosure. Part of the Adjudication Officer`s reasoning was that the employee could not prove in writing that she had made a Disclosure before the alleged penalization.
Reporting the Disclosure
Make sure that you report the Disclosure in strict accordance with the provisions of Sections 6 to 10 of the Act: otherwise you might lose the protections afforded by the Act. A close reading of these sections of the Act is strongly advised.
Make sure to co-operate fully in any subsequent Investigation by the employer. Remember, you cannot be penalized for making a Disclosure, but likewise you must provide all relevant information to prove that your belief of the commission of a relevant wrongdoing within the workplace was reasonable.
Hearings and Representation
Check the Protected Disclosure Policy & Procedure to ensure that there are provisions to allow you avail of representation at any Investigation meetings. Under no circumstances should you attend any meetings without representation. If the employer does not have a Protected Disclosure Policy then take legal advice immediately. Insist on agreeing the typed Minutes of any meetings.
If you are penalized or dismissed as a result of making a Protected Disclosure?
Consult your solicitor immediately. Remember, if you are dismissed as a result of the disclosure and wish to make an Application to the Circuit Court for Interim Relief (seeking to have your job restored pending the Hearing by the WRC) your solicitor will need to file the Application with the Circuit Court within 21 days. There will be a substantial amount of work to be done, including instructing Counsel – which can only be done after all documentation and facts have been gathered. The solicitor will need as much time as possible to prepare your Claim.
One Year Service Requirement?
There is a general assumption by most employers that an employee cannot take a case unless they are employed for more than one year. Wrong! This is commonly known as the “One Year Service Requirement”. There are a number of exceptions to the “One Year Service Requirement”, to which has been added a dismissal for making a Protected Disclosure. Therefore, an employer should not assume that an employee has no recourse where the employee with less than one year`s service makes a Protected Disclosure. The employer in the WRC case reported in the heading made this incorrect assumption – and it cost them €52,416 + their own legal representatives costs!
And finally – the paperwork!
If you have made a genuine Protected Disclosure there is no reason why you should not retain copies of all documents which come to your attention and proof of how you reported your Disclosure. You are going to need this documentation in any case for the purpose of the employer`s investigation. More importantly, if you are dismissed by your employer this could happen very suddenly where you may have no opportunity to gather your documentation together. While your solicitor may ultimately be able to obtain some documents under the provisions of the Data Protection Acts, these documents will only be available at earliest 40 days after formal Request and will not necessarily relate to the “relevant wrongdoing” as this may not constitute data about you. The documents will certainly not become available within the 21 days required to file the Court Application. Therefore, take precautions!
Read my substantive Article
While this short Article has given you some relevant pointers, it is important to read my substantive Article to learn the reasoning as to why all of the above actions are necessary. This is a complex Act and failure to comply with all of the provisions of the Act could mean that you could lose these new statutory protections.
Morgan McManus Solicitors